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AGONLINE DAIRY FORWARD CONTRACT
This Sales Contract applies to all forward contracts for dairy.

AGONLINE TERMS OF SALE
This Sales Contract applies to all stock sales (except for dairy stock sold by forward contract). It includes lambs and calves sold by forward contract, and dairy cows sold on a non-forward basis.

AGONLINE TERMS OF SALE DAIRY FORWARD CONTRACT

SALE AND PURCHASE
The Vendor agrees to sell, and the Purchaser agrees to purchase, the stock described in the relevant Agonline listing page (Listing Page) (subject to any reduction in the number of Head in accordance with clause 3 and clause 4 of this contract) (the Stock) in accordance with the Listing Page, the Vendor special conditions referred to on the Listing Page (the Vendor Special Conditions) and these Terms of Sale. These Terms of Sale form the contract between the Vendor and the Purchaser and may also be relied on by PGG Wrightson.

TERMS OF USE

CARE OF STOCK
Care
1. The Vendor will (at the Vendor’s expense) properly feed the Stock (or, if relevant, the animals from which the Stock are to be selected) and attend to those animals as a prudent farmer would having regard to the nature and quality of the animals and the land upon which the animals are farmed, including (if necessary) procuring suitable grazing or supplementary feed at the Vendor’s expense.
2. Without limiting the Vendor’s general obligation of care, the Vendor will also comply with any specific care requirements in the Vendor Special Conditions.
  
  Inspection
3. The Purchaser may inspect the Stock (or, if relevant, the animals from which the Stock are to be selected) from time to time for soundness and condition. The Purchaser must give the Vendor at least 48 hours notice of any inspection. If requested, PGG Wrightson will assist in arranging an inspection but a PGG Wrightson Livestock Representative is not required to be present.
4. During any inspection the Purchaser may (at its cost) take blood samples, for blood testing for eczema, from any or all of the animals being inspected. Each blood test must be completed by a Gribbles Veterinary Pathology laboratory or as directed by PGG Wrightson.
STOCK REQUIREMENTS
General
1. At the time of selection and delivery the Stock must:
  1. be sound;
  2. be correctly identified using an identification system approved under the Biosecurity (Animal Identification Systems) Regulations 1999 (which includes the system operated by the Animal Health Board Inc and the system operated by Livestock Improvement Corporation); and
  3. comply with any stock conditions specified in the Vendor Special Conditions,
  and the Vendor will ensure that the Stock meets these requirements.
2. In this contract an animal is deemed not to be sound if it has three or less milking quarters; is unhealthy in body or limb; is not in calf (if applicable); or has an average individual seasonal somatic cell count exceeding that permitted under clause 6 of the Vendor Special Conditions.
  
  In-calf warranty
3. If clause 3 of the Vendor Special Conditions specifies that a 28 day in-calf warranty applies, each animal must be in-calf when tested during the 28 day period following the earlier of the Delivery Date and the time of delivery (the in-calf warranty).
4. If any animal breaches the in-calf warranty, then prior to the expiry of the 28 day in-calf warranty period the Purchaser may notify PGG Wrightson of that breach and at the same time elect to either:
  1. reject the animal, in which case the Purchaser will:
    • promptly return the rejected animal to the Vendor; and
    • be entitled to a prompt refund from the Vendor of
    (i) that part of the Purchase Price relating to that animal and
    (ii) the Purchaser’s reasonable costs in returning the animal; or
  2. retain the animal, in which case the Purchaser will be entitled to a prompt refund from the Vendor of 25% of that part of the Purchase Price relating to that animal.
5. Clause 2.4 sets out the Vendor’s sole liability for breach of the in-calf warranty. The Purchaser may not make any claim for any breach of the in-calf warranty after the expiry of the 28 day in-calf warranty period.
6. If clause 3 of the Vendor Special Conditions does not specify a 28 day in-calf warranty period:
  1. the Vendor will pregnancy test and/or scan the Stock described as in-calf on the Listing Page within the 10 day period prior to the Delivery Date or the Purchaser taking delivery. The Vendor will pay the cost of the testing/scanning and will provide veterinary certificates of the results; and
  2. the Purchaser bears all risk of any animal that is found to be in-calf when tested or scanned subsequently aborting that calf prior to delivery date.
SELECTION
1. Prior to taking delivery the Purchaser will select the Stock from the Vendor’s stock described in the Listing Page if the specific animals to be purchased are not identified on that web-page. The number of animals to be selected will be the number of Head/Tally specified in the Listing Page or such lesser number of animals as comply with the requirements in clause 2.1 and (if the 28 day in-calf warranty does not apply) are found to be in-calf at any pregnancy test or scan in accordance with clause 2.6.
2. The Purchaser will notify PGG Wrightson and the Vendor of the animals selected, and that notice will form part of this contract.
VARIATION IN NUMBER
Lesser number possible
1. The number of animals comprising the Stock may be reduced from the number of Head/Tally specified in the Listing Page (or such lesser number as is selected under clause 3.1) in accordance with this clause 4. The Vendor must sell, and the Purchaser must buy, that reduced number at the relevant price per head bid through Agonline. Clause 32(1) of the Sale of Goods Act 1908 does not apply.
  
  Rejection without cause
2. Prior to taking delivery, the Purchaser may reject any animal for any reason (but only to the maximum rejection rate specified in the Vendor Special Conditions for that type of animal).
3. In rejecting animals under clause 4.2, the maximum number of animals that may be rejected will be:
  1. calculated as a percentage of the number of animals selected under clause 3 less the number of animals rejected under clause 4.4; and
  2. rounded up or down to the nearest whole number; and
  Rejection for cause
4. Prior to taking delivery, the Purchaser may reject any animal that:
  1. does not comply with the requirements in clause 2.1;
  2. has a GGT test result exceeding 500 when tested in accordance with clause 1.4 or that shows visual signs of eczema on the Delivery Date; or
  3. had been found not to be in-calf when pregnancy tested or scanned in accordance with clause 2.6 or which is not in-calf at delivery.
5. The Purchaser may only reject an animal in accordance with clause 2.4(a), clause 4.2 and clause 4.4.
6. The Vendor and the Purchaser will record all Stock rejected under this clause 4 (by recording tag numbers, highlighting selected Stock on herd sheets or otherwise). The Purchaser will promptly notify PGG Wrightson on behalf of the Vendor of any rejections and the reasons for each rejection.
7. Any Stock rejected under this clause 4 will not be sold under this contract.
  
  Force majeure
8. The Vendor will not be liable for any inability to make any or all of the Stock available for the Purchaser to take delivery in accordance with this contract because of any reason beyond the Vendor’s reasonable control (including death, disease, theft, flood, earthquake or other natural disaster) (force majeure). The Vendor must promptly notify the Purchaser and PGG Wrightson of any force majeure event, and must do anything reasonably practicable to mitigate the effect of that force majeure event. The number of Stock sold under this contract will be reduced by the number of Stock that the Vendor cannot make available to the Purchaser due to force majeure, and the Vendor will not be liable for, and the Purchaser will not be entitled to compensation for, any reduction in Stock due to force majeure.
DELIVERY
Purchaser to take delivery on Delivery Date
1. The Vendor will make the Stock available for the Purchaser to take delivery on the Delivery Date at the address at which the Stock were located on the date of this contract (or any alternative location agreed by the Vendor and Purchaser).
2. The Vendor must provide the Purchaser with:
  1. on or prior to delivery, a properly completed and signed “Animal Status Declaration” as required under the Animal Products Act 1999 and any other notice or declaration required by law for the sale or transport of the Stock (with a copy to PGG Wrightson); and
  2. within one week of delivery, LIC Animal Transfer Cards in respect of the Stock (unless the relevant Listing Page states that the Stock is not LIC recorded). Payment cannot be withheld by the Purchaser subject to delivery of LIC transfer cards from the Vendor.
3. The Purchaser will take delivery of the Stock on the Delivery Date (unless the Vendor has not materially complied with clause 5.2, in which case the Purchaser may refuse to take delivery of the Stock until the Vendor has materially complied).
4. Where the Delivery Date is the same as the Settlement Date, delivery and settlement are interdependent and the Vendor is not required to permit delivery of the Stock until the Vendor has received full payment of the Purchase Price in cleared funds.
  
  Delivery prior to settlement
5. Where the Purchaser takes delivery of any Stock from the Vendor prior to the Purchase Price for that Stock being paid in full and in cleared funds:
  1. the Purchaser shall take and hold that Stock on trust for the Vendor as bailee of the Vendor until payment is made in full;
  2. the Purchaser shall be deemed to have irrevocably requested and authorised PGG Wrightson to pay the Purchase Price in full to the Vendor for and on the Purchaser’s account by crediting the Vendor’s PGG Wrightson account with the unpaid portion of the Purchase Price (less any commission payable by the Vendor to PGG Wrightson) and debiting the Purchaser’s PGG Wrightson account with the unpaid portion of the Purchase Price (plus any commission payable by the Vendor to PGG Wrightson). But PGG Wrightson is not obliged to do so (and may not do so prior to the Settlement Date); and
  3. the Purchaser irrevocably gives the Vendor, the Vendor’s employees and agents, and PGG Wrightson, its employees and agents, leave and licence without notice to enter upon any premises occupied by the Purchaser or any Stock as often as may be necessary to search for, inspect and repossess the relevant Stock without incurring any liability whatsoever for such actions, and without prejudice to any of the Vendor’s or PGG Wrightson’s rights or remedies in relation to the purchase of any Stock.
6. Where PGG Wrightson credits the Vendor’s account and debits the Purchaser’s account pursuant to clause 5.5(b):
  1. the Vendor and the Purchaser agree that:
    • all the Vendor’s rights relating to the Purchase Price and the relevant Stock shall then be transferred to and exercisable by PGG Wrightson, which shall accordingly be subrogated to the Vendor; and
    • PGG Wrightson may debit the Purchase Price (or any unpaid portion of the Purchase Price) to the Vendor’s account at any time prior to PGG Wrightson receiving from the Purchaser full payment of the Purchase Price in cleared funds. In which case (i) that unpaid amount will be payable by the Vendor to PGG Wrightson immediately (ii) all PGG Wrightson’s rights relating to the Purchase Price and the relevant Stock shall be transferred to and exercisable by the Vendor and (iii) the licence granted to PGG Wrightson and PGG Wrightson’s employees and agents ends (except to the extent that they are acting as the Vendor’s agent); and
  2. the Purchaser agrees that none of its obligations in respect of the Purchase Price and the relevant Stock will have been discharged (as between the Purchaser and PGG Wrightson).
  No claim after delivery
7. Unless prior to the Purchaser taking delivery the Vendor specifically agrees otherwise in writing in relation to identified animals:
  1. any animal that the Purchaser takes delivery of will be deemed for all purposes to comply with clause 2.1; and
  2. the Vendor will not be liable for, and the Purchaser may not under any circumstances claim, any breach of clause 2.1 in respect of any animal that has been taken delivery of.
CONTRACT CONDITIONAL
1. This contract is conditional upon at least 50% of the Stock being free of visual signs of apthovirus (foot and mouth) at the Delivery Date.
2. The Vendor or the Purchaser may cancel this contract by giving notice to PGG Wrightson on the Delivery Date and prior to taking delivery of any Stock if the foot and mouth condition (clause 6.1) is not fulfilled.
3. If this contract is cancelled under clause 6.2, the Purchaser shall be entitled to the return of the deposit and any other moneys paid by the Purchaser and neither the Vendor nor the Purchaser will have any claim against the other.
4. This contract will be deemed to be unconditional upon the Purchaser taking delivery of any or all of the Stock.
PAYMENT OF PURCHASE PRICE
Purchase Price
1. The Purchase Price is the sum of the number of animals specified in the Listing Page (Head/Tally) (less any reduction in that number in accordance with clause 3 and clause 4) multiplied by the auction or ‘buy now’ price per head determined through Agonline; less any amount to be deducted from the Purchase Price in accordance with clause 2.4, plus GST (if any).
2. Prior to settlement PGG Wrightson will provide the Purchaser with an interim settlement on behalf of the Vendor, with a valid tax invoice being issued after settlement date. PGG Wrightson will, on behalf of the Vendor, promptly provide the Purchaser with a credit note in respect of any reduction in the Purchase Price arising from the reduction in animals being purchased or any other reason.
  
  Deposit
3. The Purchaser will pay PGG Wrightson a deposit of 10% of the Purchase Price within 3 Business Days of the contract being entered into (the Deposit Due Date). The deposit will be applied in part payment of the Purchase Price.
4. PGG Wrightson will hold the deposit as stakeholder until this contract becomes unconditional or is cancelled for non-fulfilment of the foot and mouth condition in clause 6. Any interest received on the deposit from the time of payment until the Settlement Date will be for the Purchaser’s account.
5. If the deposit is not paid in full by the Deposit Due Date, the Vendor may give the Purchaser and PGG Wrightson seven days notice of the Vendor’s intention to cancel this contract. The Vendor may cancel this contract for non-payment of the deposit by giving notice to the Purchaser and PGG Wrightson only after the expiry of that seven day period. No notice of cancellation will be effective if the deposit is paid before the Purchaser and PGG Wrightson receive the notice of cancellation.
  
  Settlement
6. On the Settlement Date the Purchaser will pay to PGG Wrightson (on account of the Vendor) the Purchase Price (less the deposit and any other amount already paid to PGG Wrightson in partial satisfaction of the Purchase Price) without any set-off or deduction.
7. The Purchaser will pay the amount required under clause 7.6 by bank cheque or by the deposit of cleared funds immediately available for use into the PGG Wrightson’s Agonline account.
8. The Purchaser is not required to make any payment under clause 7.6 unless:
  1. the Purchaser has received satisfactory evidence that any security interest in the Stock has been or will be immediately discharged; and
  2. if the Delivery Date is the same as or prior to the Settlement Date, the Stock has been or is available for delivery and the Vendor has materially complied with clause 5.2.
  Retention
9. The Vendor authorises PGG Wrightson to hold, and PGG Wrightson will hold, 5% of the Purchase Price (the Retention) as stakeholder in accordance with clauses 7.9 to 7.11 of this contract.
10. The Purchaser may at any time during the 28 day period following delivery (the retention period) request PGG Wrightson to release to the Purchaser from the Retention part or all of the amount of:
  1. any amount agreed in writing by the Vendor and the Purchaser or determined by the independent expert in respect of any claim notified by the Purchaser to PGG Wrightson and/or the Vendor prior to taking delivery of any Stock, that that Stock does not comply with the requirements in clause 2.1;
  2. any refund of the Purchase Price payable under clause 2.4 (in-calf warranty),
  (a retention claim) and in each case PGG Wrightson may require the Purchaser and the Vendor to provide reasonable evidence supporting the release.
11. PGG Wrightson will release:
  1. to the Purchaser the amount, if any, of the Retention agreed to by the Vendor (which is not to be unreasonably withheld) or determined by the independent expert in respect of any retention claim; and
  2. to the Vendor the Retention or what is left of it after any payment under clause 7.10 following the expiry of the retention period and the resolution of any retention claim.
  Interest on late payment
12. If any of the Purchase Price is not paid on the due date for any reason (other than the Vendor’s default), the Purchaser will be liable to pay to the Vendor (on demand) interest on the unpaid amount from the due date for payment at the rate charged by PGG Wrightson on overdue accounts at that time.
NON-DELIVERY AND FAILURE TO PAY THE PURCHASE PRICE
Failure by Purchaser
1. If for any reason (other than the Vendor’s default) the Purchaser does not:
  1. take delivery of all or any of the Stock on the Delivery Date; or
  2. pay the Purchase Price in full on the Settlement Date, then the Vendor may notify the Purchaser (with a copy to PGG Wrightson) of that failure and, if the Purchaser does not remedy that failure within 14 days after such notification, the Vendor may without prejudice to any other rights or remedies available to the Vendor at law or in equity:
  3. sue the Purchaser for specific performance; and/or
  4. by notice to the Purchaser (with a copy to PGG Wrightson) elect to not sell to the Purchaser under this contract any further Stock not taken delivery of by the Purchaser (whereupon it shall no longer be obliged to sell that Stock to the Purchaser and the Purchaser shall be liable for damages); and/or
  5. by notice to the Purchaser (with a copy to PGG Wrightson) cancel this contract, and:
    • forfeit and retain the deposit (but not exceeding 10% of the Purchase Price); and/or
    • sue the Purchaser for damages.
2. The damages claimable by the Vendor under clause 8.1(e) shall include all damages claimable at common law or in equity and shall also include (but shall not be limited to) any loss incurred by the Vendor on any bona fide resale of any of the Stock contracted within 12 months from the date by which the Purchaser must settle in compliance with the default notice under clause 8.1. The amount of that loss may include:
  1. interest on the relevant unpaid portion of the Purchase Price from the Settlement Date to the settlement of such resale at the rate charged by PGG Wrightson on its overdue debtor accounts at the Settlement Date (less any interest paid by the Purchaser to the Vendor in accordance with clause 7.12);
  2. all costs and expenses reasonably incurred in any resale or attempted resale; and
  3. all expenses incurred by the Vendor in respect of carrying the Stock from the Delivery Date to the settlement of such resale.
  Failure by Vendor
3. If for any reason (other than the Purchaser’s default) the Vendor does not make all or any of the Stock available for delivery by the Purchaser on the Delivery Date in accordance with this contract, then the Purchaser may notify the Vendor (with a copy to PGG Wrightson) of that failure and, if the Vendor does not remedy that failure within 14 days after such notification, the Purchaser may without prejudice to any other rights or remedies available to the Purchaser at law or in equity:
  1. sue the Vendor for specific performance; and/or
  2. by notice to the Vendor (copied to PGG Wrightson) elect that it will not purchase from the Vendor under this contract any further Stock not taken delivery of by the Purchaser (whereupon it shall no longer be obliged to purchase that Stock from the Vendor and the Vendor shall be liable for damages); and/or
  3. cancel this contract, and require the Vendor to immediately repay the deposit and any other amount paid on account of the Purchase Price (plus interest on that amount at the rate charged by PGG Wrightson on its overdue debtor accounts at the Settlement Date), and sue the Vendor for damages (which shall include all costs arising directly from the cancellation of this contract).
TIME OF THE ESSENCE
1. Time shall be of the essence in the performance by the Purchaser and the Vendor of their respective obligations under this contract.
RISK
1. Except as provided in clause 2.6(b) (in respect of animals being in-calf), each animal comprising the Stock is and will remain at the Vendor’s sole risk in all respects until that animal either:
  1. crosses the tailgate of the Purchaser’s nominated carrier; or
  2. if driven, commences being driven by or on behalf of the Purchaser,
  at which point that animal will be “delivered” for the purposes of this contract and will be at the Purchaser’s sole risk in all respects.
2. Any animal rejected and returned to the Vendor pursuant to clause 2.4(a), for breach of the in-calf warranty, will remain at the Purchaser’s risk until the animal is off loaded at the Vendor’s property from which delivery was taken (or any alternative location agreed by the Vendor and Purchaser).
TITLE
Retention of title
1. Title in the Stock shall remain with the Vendor and shall not pass to the Purchaser until the Purchase Price has been paid in full in cleared funds in accordance with this contract.
  Purchaser to receive full and unencumbered title
2. At the time specified in clause 11.1, the Vendor will provide to the Purchaser full equitable, beneficial and legal title in the Stock free and clear of all encumbrances and adverse interests.
  PPSA
3. The Purchaser:
  1. agrees that the Vendor’s retention of title in the Stock:
    • secures all payments and the performance by the Purchaser of its obligations under this contract; and
    • is a security interest in favour of the Vendor for the purposes of the Personal Property Securities Act 1999 (“PPSA”);
  2. will, on request, provide to the Vendor and PGG Wrightson all information and do all things necessary for the Vendor or PGG Wrightson to register a financing statement relating to that security interest in the Stock, and will ensure that the security interest is a first ranking perfected security interest over the Stock and their proceeds;
  3. waives its right to receive a copy of any verification statement in respect of any financing statement relating to that security interest in the Stock; and
  4. agrees that, to the extent permitted by law, sections 114(1)(a), 117(1)(c), 133 and 134 of the PPSA and the Purchaser’s rights under sections 116, 119, 120(2), 121, 125 to 127, 129, 131 and 132 of the PPSA do not apply.
4. If the Purchaser fails to comply with any term of this contract, the Seller or PGG Wrightson may exercise any and all remedies afforded to a secured party of the Personal Property Securities Act 1999 and enter any building or premises owned, occupied, or used by the Purchaser, to search for and re-take possession of the Stock.
PGG WRIGHTSON
1. The Vendor will pay PGG Wrightson commission in accordance with the ‘Fees’ section of the Agonline Terms of Use.
2. The Vendor and the Purchaser agree that:
  1. except as expressly stated in this contract, PGG Wrightson is not required to make any disclosure to any person or to do anything under or in relation to this contract;
  2. PGG Wrightson may act in multiple capacities under this contract, including as agent for the Vendor and/or the Purchaser (for example, giving or receiving notices or information for, or acting for, either the Vendor and/or the Purchaser) and also as a principal buying and selling stock on its own account (so that PGG Wrightson is also the Vendor or Purchaser);
  3. regardless of any conflict of interest, PGG Wrightson may deal with the Vendor or Purchaser as PGG Wrightson considers appropriate without owing any duty of disclosure or to account, or any fiduciary or other obligation arising out of so acting;
  4. neither of them is entitled to access the advice, information or property of the other of them.
3. Each of the Vendor’s and the Purchaser’s obligations in this contract are also for the benefit of PGG Wrightson, and are intended to be enforceable by PGG Wrightson.
PGG WRIGHTSON’S LIABILITY
1. PGG Wrightson will not be liable in any way for any action, inaction, omission, failure, breach, statement or other matter or thing (each an “Action”) of the Vendor, the Purchaser or any independent expert under or in respect of this contract or otherwise in relation to any Stock (or animals from which the Stock are selected). PGG Wrightson shall, to the maximum extent permitted by law, have no liability for any Action of PGG Wrightson in respect of this contract or otherwise in relation to any Stock (or animals from which the Stock are selected),
2. PGG Wrightson is not in any circumstances liable to the Vendor, the Purchaser or any other person in contract, tort, negligence, equity or in any other way for any loss or damage of any kind, arising from or in relation to this contract. If for any reason PGG Wrightson cannot rely on the above exclusion of liability, its liability will be limited to direct physical loss suffered to a maximum of $50 per transaction/contract. In no event will PGG Wrightson be liable for any loss of profit, savings, goodwill or business opportunity or for any indirect or consequential loss or for general or special damages.
3. The Vendor and the Purchaser agree to indemnify PGG Wrightson on demand against all claims, costs (including full legal costs), losses, liabilities and demands that PGG Wrightson incurs directly or indirectly as a result of their failure to comply with this contract.
DISPUTES
Expert determination
1. Any dispute between the Vendor and the Purchaser concerning:
  1. whether any animal:
      • may be rejected;
      • has breached the in-calf warranty (if any); or
      • complies with the requirements in clause 2.1; or
  2. compliance with clause 13 of the Vendor Special Conditions or the mating details on the Listing Page,
  (each a Dispute) will be referred by PGG Wrightson, at the request of the Vendor or the Purchaser, to an independent expert for determination.
2. The independent expert will be appointed by PGG Wrightson after consultation with the Vendor and the Purchaser (or, if PGG Wrightson is also the Vendor or Purchaser in its own right, appointed by the President of The Law Society failing agreement between the Vendor and the Purchaser).
3. In determining a Dispute the independent expert will:
  1. act as an expert and not as an arbitrator;
  2. rely on the expert’s own knowledge, skill, experience and judgment;
  3. be entitled to make enquiries without reference to the Purchaser or the Vendor.
4. The expert will be requested to give the expert’s determination of the Dispute as soon as practicable after being appointed. The expert’s determination will be in writing, include reasons, and will be final and binding on the Purchaser and the Vendor.
5. The expert’s fees with respect to his or her determination will be borne equally by the Vendor and the Purchaser, except to the extent that the expert determines otherwise.
  
  Effect of expert determination
6. The expert determination process is not a submission to arbitration and the process applies only to disputes described in clause 14.1.
7. Nothing in clause 14.1 or the expert determination process prevents any person seeking or obtaining any order or relief by way of injunction or declaration or other equitable or statutory remedy against any other party or other person where the claimant believes such order or relief is necessary for the urgent protection of the claimant’s rights or property.
MISCELLANEOUS
1. Joint and several liability: If the Vendor or the Purchaser is more than one person, the obligations of the Vendor and/or the Purchaser (as the case may be) under this contract bind all those persons jointly and severally.
2. Variation: This contract can only be varied by agreement in writing.
3. Notices: Any notice under this contract:
  1. must be in writing.
  2. must be served by one of the following means:
    • by delivering it, posting it, faxing it or e-mailing it to the recipient of the notice at the relevant address provided through Agonline (or, in the case of PGG Wrightson, to the PGG Wrightson Livestock Representative dealing with this contract at the email address specified on Agonline.) and/or
    • by delivering it, posting it, faxing it or e-mailing it to the Vendor’s or the Purchaser’s solicitor if that party has notified the other that its solicitor will be acting for them.
  3. will be deemed to be served:
      • in the case of personal delivery, when actually received by the party or (if permitted) their solicitor’s office;
      • in the case of posting, 2 working days following the date of posting in accordance with this contract (or earlier if actually received by that party);
      • in the case of facsimile transmission, as soon as the sender receives an error free transmission report; and
      • in the case of e-mail, when acknowledged by the recipient of the notice orally, by return e-mail or otherwise in writing.
4. No merger: The Vendor’s and Purchaser’s obligations and liabilities in this contract will not merge on the transfer of title to any Stock or with the delivery of any Stock.
5. Consumer Finance: The Settlement Date is the earliest date on which the parties would in any circumstances have agreed that the balance of the Purchase Price was to be payable. There is no deferment of the Purchaser’s obligation to pay the Purchase Price for the purposes of Section 6 of the Credit Contracts and Consumer Finance Act 2003 and this contract is not a “credit contract” for the purposes of or within the meaning of that Act.

AGONLINE TERMS OF SALE
(For all stock other than dairy forward contracts)

SALE AND PURCHASE
The Vendor agrees to sell and the Purchaser agrees to purchase, the stock described in the relevant Agonline listing page (Listing Page) (the Stock) in accordance with the Listing Page, any Vendor special conditions for forward contracts referred to on the Listing Page (the Vendor Special Conditions) and these Terms of Sale. These Terms of Sale form the contract between the Vendor and the Purchaser and may also be relied on by PGG Wrightson.

TERMS OF USE

DELIVERY OF STOCK
Purchaser to take delivery by the Delivery Date
1. The Vendor will make the Stock available for the Purchaser to take delivery on the Delivery Date at the address at which the Stock were located on the date of this contract (or any alternative location agreed by the Vendor and Purchaser). The Purchaser must arrange delivery of the Stock on or before the Delivery Date. The Delivery Date is the date:
  1. specified as the Delivery Date on the relevant Listing Page; or
  2. if no Delivery Date is specified, Delivery must be within 5 business days after payment has been made under clause 4.
2. The Vendor must:
  1. care for the Stock in accordance with prudent farming practice until the Purchaser has taken delivery, and ensure the stock comply with any Vendor Special Conditions; and
  2. on or prior to delivery, provide the Purchaser with a properly completed and signed “Animal Status Declaration” as required under the Animal Products Act 1999 and any other notice or declaration required by law for the sale or transport of the Stock.
3. The Vendor need not permit delivery of the Stock until the Purchaser has paid the Purchase Price (or in the case of sales on a cents per kilogram basis, payment for 70% of the Estimated Liveweight) and any amount payable under clause 1.4, in cleared funds, to PGG Wrightson’s Agonline account.
  
  Failure to take delivery
4. If the Purchaser does not take delivery of any Stock within 5 business days of the Delivery Date, the Vendor may charge the Purchaser reasonable grazing costs (including any costs to transport Stock to alternative grazing) from the end of that 5 business day period until the time the Purchaser takes delivery of that Stock.
  
  Delivery prior to payment
5. If the Purchaser takes delivery of any Stock prior to payment in full for that Stock, the Purchaser shall take and hold that Stock on trust for the Vendor as bailee of the Vendor until payment is made in full and the Purchaser shall be deemed to have irrevocably given the Vendor and PGG Wrightson (and their respective employees and agents) licence to enter, without notice or liability of any kind, upon any premises occupied by the Purchaser as often as may be necessary to search for, inspect and repossess that Stock.
REDUCTION IN STOCK NUMBERS
Purchaser’s right of rejection
1. The Purchaser may reject any Stock:
  1. that do not comply with the description of the Stock on the Listing Page; and
  2. nominated by the Purchaser if a Stock rejection rate is specified on the Vendor Special Conditions and the Stock rejected under this clause 2.1 do not exceed that rejection rate.
2. No Stock may be rejected after the Purchaser has taken delivery.
3. The rejection right under clause 2.1 is the Purchaser’s sole remedy for Stock that does not comply with the description on the Listing Page. Any dispute as to whether Stock may be rejected will be determined by an expert in accordance with clause 9.
  
  Force majeure
4. If any reason beyond the Vendor’s reasonable control including death, disease, theft, flood, earthquake or other natural disaster (force majeure) the Vendor cannot make all of the Stock available for the Purchaser in accordance with this contract:
  1. the Vendor must promptly notify the Purchaser and PGG Wrightson of that force majeure, and must do everything reasonably practicable to mitigate the effect of that force majeure;
  2. the number of Stock sold under this contract will be reduced by the number of Stock that the Vendor cannot make available to the Purchaser due to force majeure; and
  3. the Vendor will not be liable for, and the Purchaser will not be entitled to compensation for, any reduction in Stock due to force majeure.
STOCK SOLD ON A CENTS PER KILOGRAM (CPK ) BASIS
Weighing
1. Where Stock has been sold on a cents per kilogram (CPK) basis:
  1. the Vendor will ensure that the Stock are off feed at least 4 hours before being trucked.
  2. On delivery pick up the Stock will be weighed by truck weighing on the nearest certified weighbridge. The Purchaser will pay the cost of weighing.
  3. (c) The Purchaser shall fax or email a copy of the weight note to the Agonline administrator (fax (07) 349 6845 or email address enquiries@agonline.co.nz) who will then enter the actual liveweight details in Agonline on the day of delivery.
  Cap on CPK weights
2. CPK weights will be capped at 110% of the Estimated Liveweight per animal specified in the Listing Page. So, regardless of the actual liveweight the Purchase Price for Stock sold on a CPK basis will never be more than 110% of the Estimated Liveweight.
PAYMENT OF PURCHASE PRICE
Purchase Price
1. If the Listing Page specifies that the auction is on a:
  1. price per head basis, the Purchase Price is the number of animals specified in the Listing Page (Head/Tally) (less any reduction in that number in accordance with this contract) multiplied by the auction or ‘buy now’ price per head determined through Agonline; or
  2. CPK basis, the Purchase Price is the liveweight of that Stock (determined in accordance with clause 3) multiplied by the successful auction or ‘buy now’ CPK determined through Agonline,
  plus GST (if any).
2. PGG Wrightson will provide the Purchaser with an interim settlement statement on behalf of the Vendor, with a valid tax invoice being issued after settlement. PGG Wrightson will, on behalf of the Vendor, promptly provide the Purchaser with a credit note in respect of any reduction in the Purchase Price arising from the reduction in animals being purchased or any other reason.
  
  Time of payment – all sales (other than CPK sales or forward contracts)
3. The Purchaser will pay the Purchase Price to PGG Wrightson’s Agonline account within 48 hours of the auction listing closing.
  
  Time of payment – forward contracts
4. If a Delivery Date later than 5 business days after the auction listing closes is specified, the Purchaser will pay the Purchase Price to PGG Wrightson’s Agonline account as follows:
  1. a deposit of 10% of the Purchase Price within 48 hours of the auction listing closing. PGG Wrightson will hold the deposit as stakeholder in an interest bearing Rural Deposit account. PGG Wrightson will credit the deposit to the Vendor following delivery of the Stock or to the Purchaser if the contract is cancelled because of the Vendor’s default. Any accrued net interest will be credited to the Purchaser in either event; and
  2. the balance of the Purchase Price on or before the Delivery Date.
  Time of payment – CPK sales
5. For CPK sales, the Purchaser will pay the Purchase Price to PGG Wrightson’s Agonline account as follows:
  1. 70% of the Estimated Liveweight per animal payable within 48 hours of the auction listing closing; and
  2. the balance of the Purchase Price within 48 hours of the actual weight being determined in accordance with clause 3.
  Payment requirements
6. The Purchase Price is to be paid:
  1. by direct credit or online transfer to PGG Wrightson’s Agonline account; and
  2. without any set-off or deduction.
7. The Purchaser is not required to make any payment of the Purchase Price unless:
  1. the Purchaser has received satisfactory evidence that any security interest in the Stock has been or will be immediately discharged; and
  2. the Stock has been or is available for delivery and the Vendor has materially complied with clause 1.2.
  Payment by PGG Wrightson
8. PGG Wrightson will credit the Purchase Price net of any commission to the Vendor’s account (or otherwise pay that amount to the Vendor) within 5 business days of receiving payment from the Purchaser and the Purchaser taking delivery of the Stock. For CPK sales PGG Wrightson will credit the Purchase Price in the two instalments under clause 4.5 above, net of any commission, to the Vendor’s account (or otherwise pay that amount to the Vendor) within 5 business days of receiving payment from the Purchaser.
9. If PGG Wrightson credits (or otherwise pays) the Purchase Price to the Vendor’s account before receiving that amount in cleared funds from the Purchaser:
  1. the Vendor agrees that all rights relating to the Purchase Price and the Stock will be transferred or subrogated to PGG Wrightson; and
  3. the Purchaser agrees that will not constitute payment of any part of the Purchase Price by the Purchaser and all of the provisions of this contract will remain available to PGG Wrightson, but without prejudice to PGG Wrightson’s other rights and remedies.
  Interest on late payment
10. If any amount payable by the Purchaser under this contract is not paid on the due date for any reason (other than the Vendor’s default), the Purchaser will be liable to pay to the Vendor, on demand, interest on the unpaid amount from the due date for payment at the rate charged by PGG Wrightson on overdue accounts at that time.
NON-DELIVERY AND FAILURE TO PAY THE PURCHASE PRICE
Failure by Purchaser
1. If for any reason (other than the Vendor’s default) the Purchaser does not:
  1. take delivery of all or any of the Stock on the Delivery Date (or any other date agreed by the parties); or
  2. pay the Purchase Price in full on the Settlement Date (as specified on the Vendor Special Conditions for forward contracts) or otherwise on the payment date as required under this contract,
    then the Vendor may notify the Purchaser of that failure and, if the Purchaser does not remedy that failure within 3 business days after such notification, the Vendor may without prejudice to any other rights or remedies available to the Vendor at law or in equity:
  3. sue the Purchaser for specific performance; and/or
  4. by notice to the Purchaser cancel this contract in respect of any Stock the Purchaser has not taken delivery of, and sue the Purchaser for damages.
  Failure by Vendor
2. If for any reason (other than the Purchaser’s default) the Vendor does not make all or any of the Stock available for delivery by the Purchaser in accordance with this contract, then the Purchaser may notify the Vendor of that failure and, if the Vendor does not remedy that failure within 3 days after such notification, the Purchaser may without prejudice to any other rights or remedies available to the Purchaser at law or in equity:
  1. sue the Vendor for specific performance; and/or
  2. by notice to the Vendor cancel this contract in respect of any Stock the Purchaser has not taken delivery of, and sue the Vendor for damages.
RISK
1. Each animal comprising the Stock is and will remain at the Vendor’s sole risk in all respects until that animal either:
  1. crosses the tailgate of the Purchaser’s nominated carrier; or
  2. if driven, commences being driven by or on behalf of the Purchaser,
  at which point that animal will be “delivered” for the purposes of this contract and will be at the Purchaser’s sole risk in all respects.
TITLE
Retention of title
1. Title in the Stock shall remain with the Vendor and shall not pass to the Purchaser until the Purchase Price has been paid in full in cleared funds under this contract.
  
  Purchaser to receive full and unencumbered title
2. At the time specified in clause 7.1, the Vendor will provide to the Purchaser full equitable, beneficial and legal title in the Stock free and clear of all encumbrances and adverse interests.
PPSAM
1. The Purchaser:
  1. agrees that the Vendor’s retention of title in the Stock:
    • secures all payments and the performance by the Purchaser of its obligations under this contract; and
    • is a security interest in favour of the Vendor for the purposes of the Personal Property Securities Act 1999 (“PPSA”);
  2. will, on request, provide to the Vendor and PGG Wrightson all information and do all things necessary for the Vendor or PGG Wrightson to register a financing statement relating to that security interest in the Stock, and will ensure that the security interest is a first ranking perfected security interest over the Stock and their proceeds;
  3. waives its right to receive a copy of any verification statement in respect of any financing statement relating to that security interest in the Stock; and
  4. agrees that, to the extent permitted by law, sections 114(1)(a), 117(1)(c), 133 and 134 of the PPSA and the Purchaser’s rights under sections 116, 119, 120(2), 121, 125 to 127, 129, 131 and 132 of the PPSA do not apply.
2. If the Purchaser fails to comply with any term of this contract, the Seller or PGG Wrightson may exercise any and all remedies afforded to a secured party of the Personal Property Securities Act 1999 and enter any building or premises owned, occupied, or used by the Purchaser, to search for and re-take possession of the Stock.
PGG WRIGHTSON
1. The Vendor and the Purchaser agree that:
  1. except as expressly stated in this contract or the Agonline terms of use, PGG Wrightson is not required to make any disclosure to any person or to do anything under or in relation to this contract;
  2. PGG Wrightson may act in multiple capacities under this contract, including as agent for the Vendor and/or the Purchaser (for example, giving or receiving notices or information for, or acting for, either the Vendor and/or the Purchaser) and also as a principal buying and selling stock on its own account (so that PGG Wrightson is also the Vendor or Purchaser);
  3. regardless of any conflict of interest, PGG Wrightson may deal with the Vendor or Purchaser as PGG Wrightson considers appropriate without owing any duty of disclosure or to account, or any fiduciary or other obligation arising out of so acting;
  4. neither of them is entitled to access the advice, information or property of the other of them.
2. Each of the Vendor’s and the Purchaser’s obligations in this contract are also for the benefit of PGG Wrightson, and are intended to be enforceable by PGG Wrightson.
3. PGG Wrightson is not in any circumstances liable to the Vendor, the Purchaser or any other person in contract, tort, negligence, equity or in any other way for any loss or damage of any kind, arising from or in relation to this contract. If for any reason PGG Wrightson cannot rely on this exclusion of liability, its liability will be limited to direct physical loss suffered to a maximum of $50 per transaction/contract. In no event will PGG Wrightson be liable for any loss of profit, savings, goodwill or business opportunity or for any indirect or consequential loss or for general or special damages.
4. The Vendor and the Purchaser agree to indemnify PGG Wrightson on demand against all claims, costs (including full legal costs), losses, liabilities and demands that PGG Wrightson incurs directly or indirectly as a result of their failure to comply with this contract.
EXPERT DETERMINATION
1. Any dispute between the Vendor and the Purchaser concerning whether an animal may be rejected in accordance with this contract will be referred by PGG Wrightson, at the request of the Vendor or the Purchaser, to an independent expert for determination.
2. The independent expert will be appointed by PGG Wrightson after consultation with the Vendor and the Purchaser (or, if PGG Wrightson is also the Vendor or Purchaser in its own right, appointed by the President of The Law Society failing agreement between the Vendor and the Purchaser). The independent expert may be PGG Wrightson or an individual employed by PGG Wrightson.
3. In determining a dispute the independent expert will:
  1. act as an expert and not as an arbitrator;
  2. rely on the expert’s own knowledge, skill, experience and judgment;
  3. be entitled to make enquiries without reference to the Purchaser or the Vendor.
4. The expert will be requested to give the expert’s determination of the dispute as soon as practicable after being appointed. The expert’s determination will be final and binding on the Purchaser and the Vendor.
5. The expert’s fees with respect to his or her determination will be borne equally by the Vendor and the Purchaser, except to the extent that the expert determines otherwise.
MISCELLANEOUS
1. Joint and several liability: If the Vendor or the Purchaser is more than one person, the obligations of the Vendor and/or the Purchaser (as the case may be) under this contract bind all those persons jointly and severally.
2. Variation: This contract can only be varied by agreement in writing.
3. Interpretation: In this contract, unless the context otherwise requires:
  1. ‘business day’ means any day other than a Saturday, Sunday, a day in the period from 25 December to 4 January in the following year (inclusive) or a day that is a public holiday in the location or region the Listing Page indicates as the location of the Stock;
  2. ‘CPK ’ means cents per kilogram; and
  3. ‘Delivery Date’ has the meaning given in clause 1.1.

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AGONLINE TERMS OF SALE
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