Harvex Trading Platform

Terms & Conditions of Trade

1. Purpose

These terms of trade apply to the sale and purchase of Goods between the Seller and the Buyer on the Platform. Neither Harvex nor its Related Companies are parties to, or liable for, any transaction between the Seller and the Buyer.

2. Interpretation

1.1 Definitions: In these terms, unless the context otherwise requires:

Applicable Incoterm means the Incoterms® 2020 trade term specified in the Trade Confirmation.

Bank Account means the bank account specified by the Seller for payment of the Contract Price.

Buyer is the purchaser of the Goods on the Platform as stipulated in the Trade Confirmation(s)

Contract Price means the price for the Goods stipulated in the Trade Confirmation.

Currency of Payment means USD or other currency as defined in the Trade Confirmation(s)

Delivery Period means the period for delivery stipulated in the Trade Confirmation.

Discharge Location means the place stipulated as the ‘delivery to’ in the Trade Confirmation

Documents means, in relation to a Shipment: commercial invoice, packing list, bill of lading (or seaway bill), and where applicable other supporting documents including but not limited to a phytosanitary certificate and a certificate of origin, the costs of which are born by the Seller unless otherwise agreed in writing.

Enforcement Event means the any of the following occurrences:

(a) any amount payable by the Buyer to the Seller is not paid when due (including by reason of a Force Majeure Event); or

(b) the Buyer becomes insolvent, commits an act of bankruptcy, has a receiver appointed over all or any part of the assets of the Buyer, makes or is likely to make an arrangement with its creditors, has a liquidator (provisional or otherwise) or administrator appointed or is placed under statutory or official management.

Force Majeure Event has the meaning given to that term in clause 13.1.

Goods means the goods described in the Trade Confirmation.

Harvex means Harvex Markets Limited (NZCN 8143712).

Quantity means the quantity of Goods stipulated in the Trade Confirmation.

Notice of Non-Conformity has the meaning give to that term in clause 12.2.

Platform means the online platform for the trading of onions and other products operated by
Harvex, and includes the Harvex website (www.harvex.co), the associated marketplace web application and the mobile application where the trading of Goods takes place.

PPSA means the Personal Property Security Act 1999.

Related Companies has the meaning given to in section 2(3) of the Companies Act 1993.

Seller means the seller of the Goods on the Platform as specified in the Trade Confirmation.

Shipment means:

(a) where a single shipment is specified in the Trade Confirmation, that shipment under which the Seller delivers the Goods; and

(b) where multiple shipments are specified in the Trade Confirmation, each shipment of Goods set out in the schedule to the Trade Confirmation.

Trade Confirmation means a confirmation of the sale and purchase of Goods on the Platform generated by Harvex and sent to the Seller and the Buyer on acceptance by the Seller of a purchase order placed by the Buyer on the Platform. Confirmation sent by email titled “Confirmation of your agreement to supply”.

Interpretation: Unless the context otherwise requires or it is specifically stated otherwise:

(a) references to sections, clauses, schedules, annexes or other identifiers are to those in these terms;

(b) the words “include” and “including” do not imply any limitations;

(c) references to “written” and “in writing” include any means of reproducing words, figures or symbols in a tangible and visible form; and

(d) any reference made to trade terms (such as CFR or EXW) is deemed to be made to the relevant term of Incoterms® 2020.

Relationship with Trade Confirmation: The Trade Confirmation, together with these terms, forms the contract for sale and purchase of Goods on the Platform between the Buyer and the Seller. If there is any conflict between a provision, word or expression in these terms and the Trade Confirmation, the provision, word or expression in the Trade Confirmation shall prevail provided however that nothing in the Trade Confirmation will have the effect of creating or increasing the liability of Harvex.

Other words have meaning set out in Trade Confirmation: Unless otherwise defined in these terms or if the context otherwise requires, words used in these terms shall have the same meanings as given to them in the Trade Confirmation.

3. Sale

3.1 Sale of Goods: Subject to the terms and conditions set out in these terms and the Trade Confirmation, the Seller agrees to sell and the Buyer agrees to buy the Goods for the Contract Price.

4. Characteristics of Goods

4.1 Excluded material: Any information or representations relating to the Goods and their use, such as weights, dimensions, prices and colours, contained in catalogues, circulars, advertisements, illustrations or price lists of the Seller are excluded from these terms and the Trade Confirmation and shall not be relied on by the Buyer, unless expressly referred to in the Trade Confirmation.

5. Price

5.1 Price exclusive of Seller’s and Buyer’s costs: The Contract Price excludes any costs (other than the purchase price of the Goods) which are specified in the Trade Confirmation or otherwise as being for the Seller’s or Buyer’s account, such sums shall not be included in the Contract Price and shall be for the account of the Seller or Buyer respectively.

6. Quantity

6.1 Seller to deliver quantity: Subject to these terms and the Trade Confirmation,:

(a) A tolerance of 2% plus or minus in either the total nett invoiced weight in kg or total number of bags is permitted and shall not be in breach of these terms or the relevant Trade Confirmation; and

(b) The Seller shall be under no obligation to deliver to the Buyer more than the total quantity of Goods stipulated in the relevant Trade Confirmation.

6.2 Multiple shipments: If multiple Shipments are permitted under the Trade Confirmation, the Seller may satisfy its delivery obligations under clause 6.1 by multiple Shipments to the Buyer.

6.3 Overpack: The Seller shall ensure that when any Goods are packed for a Shipment, an additional quantity is packed, as per the industry standard, to account for weight loss in transit. The Buyer is not liable to pay any additional amounts over and above the Contract Price for any such additional quantity of Goods.

7. Payment

7.1 Payment: Payment of the Contract Price shall be made as specified in the Trade Confirmation.

7.2 Method of payment: Payments from the Buyer to the Seller of all amounts specified in the Trade Confirmation (including the Contract Price) or otherwise under these terms shall be transferred by telegraphic transfer to the Bank Account at the times and in the amounts specified in the Trade Confirmation or these terms or otherwise agreed in writing between the parties.

7.3 Payments to be free and clear: Amounts payable under the Trade Confirmation or these terms shall be paid:

(a) free and clear of any restriction or condition;

(b) free and clear of and (except to the extent required by law) without any deduction or withholding on account of any tax; and

(c) without any deduction or withholding on account of any other amount, whether by way of set-off, counterclaim or otherwise.

7.4 Discharge of payment obligation: The Buyer shall be deemed to have performed a payment obligation when the amount due has been received by the Seller’s bank in the Bank Account in immediately available funds.

8. Default interest

8.1 Default interest payable: If the Buyer fails to pay any amount payable by it under the Trade Confirmation or these terms on its due date, then without limiting any other rights of the Seller under these terms or otherwise at law, interest shall accrue on the overdue amount from the due date to, and including, the date of payment.

8.2 Default interest rate: The rate of interest under this clause 8 shall be 10% per annum calculated daily.

8.3 Payable on demand: Any interest accruing under this clause 8 shall be immediately payable by the Buyer on demand by the Seller.

9. Delivery

9.1 Delivery terms: Delivery of the Goods shall be on the terms set out in the Trade Confirmation.

10. Documents

10.1 Seller to provide Documents: The Seller must provide the Documents to the Buyer at the time specified in the Trade Confirmation or as otherwise agreed in writing between the parties.

11. Cancellation

11.1 Cancellation by Buyer: If the Goods are not delivered to the Buyer for any reason (including due to a Force Majeure Event) within the Delivery Period, giving reasonable consideration to standard shipping delays and acting in good faith, the Buyer may cancel the Trade Confirmation (and the purchase of the Goods to which the Trade Confirmation relates) immediately by written notice to the Seller.

11.2 Material default: Without limiting the Buyer’s rights under clause 11.1, if a party (the Defaulting Party) fails to perform or comply with any of its obligations under the Trade Confirmation or these terms and that failure is incapable of remedy or, if capable of remedy, is not remedied to the reasonable satisfaction of the other party (theh Non-Defaulting Party) within 10 days after the date on which the Defaulting Party became aware of the breach, the Non-Defaulting Party may immediately cancel the Trade Confirmation (and the purchase of the Goods to which the Trade Confirmation relates) and exercise all or any of its rights under the Trade Confirmation or these terms, including the remedies set out in clause 14.10, or otherwise at law.

11.3 Indirect damages excluded: The Seller shall not be liable to the Buyer for any indirect or consequential loss and/or expense (including loss of profit) however incurred in connection with the supply of, or failure to supply, any Goods or arising out of a breach by the Seller of the Trade Confirmation or these terms.

12. Non-conformity of goods

12.1 Buyer to inspect: The Buyer shall examine, or cause to be examined, the Goods as soon as possible and in any case within 3 days of the date of arrival of a Shipment at a Discharge Location (Inspection Period).

12.2 Notice of Non-Conformity:

(a) In the event that the inspection undertaken under clause 12.1 reveals that the Goods do not conform to the Trade Confirmation in any respect, the Buyer may deliver to the Seller a written notice (Notice of Non-Conformity) within 2 days of the end of the Inspection Period.

(b) A Notice of Non-Conformity must set out the details of the non-conformity and, unless otherwise agreed by the Seller, include photographs illustrating the non-conformity and all other appropriate documentation.

(c) If no Notice of Non-Conformity is given to the Seller under clause 12.2(a) the Buyer is deemed to have agreed that the Goods conform to the Trade Confirmation.

12.3 Non-conformity resolution: If the Seller receives a Notice of Non-Conformity from the Buyer, the parties shall discuss in good faith a resolution to the relevant non-conformity, subject to, and not limiting, any other rights each party may otherwise have under these terms, the Trade Confirmation, at law or otherwise.

13. Force Majeure

13.1 Force majeure: Subject to clause 13.4, a party (the Affected Party) is not liable for a failure to perform any of its obligations under the Trade Confirmation or these terms, in so far as the Affected Party proves:

(a) that the failure was due to an impediment beyond the Affected Party’s reasonable control;

(b) that the Affected Party could not reasonably be expected to have taken into account the impediment and its effects upon the Affected Party’s ability to perform at the time of entering into the Trade Confirmation; and

(Force Majeure Event).

13.2 Notice: The Affected Party seeking relief under this clause 13 shall:

(a) as soon as practicable after the commencement of the Forece Majeure Event, give written notice to the other party (the Unaffected Party) of the Force Majeure Event and its effects on the Affected Party’s ability to perform its obligations, together with all appropriate supporting documents; and

(b) give written notice to the Unaffected Party when the Force Majeure Event ceases.

13.3 Failure to give notice or documents: Failure to give the notice specified in clause 13.2 or to provide the documents referred to in clause 13.2(a) shall preclude the Affected Party from relying on the Force Majeure Event to release it from liability to the Unaffected Party.

13.4 Effect of force majeure: Without prejudice to clause 11.1, provided it has complied with the requirements of this clause 13, the Affected Party shall, while the Force Majeure Event is subsisting, be released from all liability in damages, from penalties and other contractual sanctions arising from the failure to comply with its obligations due to the Force Majeure Event, except from the duty to pay interest on money owing.

13.5 Right to terminate: If the Force Majeure Event subsists for more than 10 days, either party shall be entitled to terminate the Trade Confirmation (and the sale and purchase of the Goods to which the Trade Confirmation relates) by written notice to the other party.

14. Security

14.1 Retention of title: Unless any negotiable or non-negotiable document of title in respect of Goods subject to a Shipment has been issued or passed to the Buyer, legal and beneficial ownership of those Goods will remain with the Seller until payment in full is made of:

(a) the Contract Price; and

(b) all other amounts owing by the Buyer to the Seller in respect of that Shipment.

14.2 Buyer to keep Goods separate: Until legal and beneficial ownership of Goods has passed to the Buyer, the Buyer will keep the Goods insured, store the Goods separately from any other goods and ensure Goods remain identifiable and ascertainable from any other goods.

14.3 PPSA: A term used in italics in this clause 14 has the same meaning as in the PPSA.

14.4 Until the Goods have been paid for in full, Buyer must not: (i) sell the Goods other than in the ordinary course of its business and the Buyer hereby grants to Seller a security interest in either every payment to the Buyer for the Goods or the portion of every payment for the manufactured product that relates to the Goods (both as proceeds of the Goods and as original collateral); and must not (ii) sell, assign, charge or otherwise encumber or grant any interest over any debts and other obligations which any third party may owe to the Buyer as a result of the use, manufacture or resale of the Goods.

14.5 The Buyer irrevocably authorises Seller at any time, to enter any premises upon which the Goods are stored to enable Seller as agent of the Buyer to inspect the Goods and, if the Buyer has breached these terms or suffers an Enforcement Event, to reclaim possession of and remove the Goods. The Buyer indemnifies Seller against any liability to any person in connection with the entry or removal.

14.6 The Buyer acknowledges and agrees that: (i) these terms constitute a security agreement for the purposes of section 36 of the PPSA; (ii) this clause 14.6 creates a security interest in the Goods and any proceeds of the Goods as security for the Buyer’s obligations to Seller; (iii) Seller is a secured party in relation to the Goods and any proceeds of the Goods, and is entitled to register its interest on the Personal Property Securities Register (“PPSR”) as a security interest, and if applicable, a purchase money security interest; (iv) Seller may, by notice to the Buyer, require the Buyer to take all steps requested by Seller to ensure Seller has a perfected security interest and if applicable, a purchase money security interest in the Goods and the proceeds and the Buyer must comply with that notice; and (v) it will do everything, at its own expense, generally to obtain, maintain and register Seller’s security interest in accordance with the PPSA.

14.7 The Buyer will:

(a) sign any further documents and provide any further information, such information to be complete, accurate and up-to-date in all respects, which Seller may reasonably require to register a financing statement or financing change statement on the PPSR);

(b) indemnify, and upon demand reimburse, Seller for all expenses incurred in registering a financing statement or financing change statement on the PPSR or releasing any Goods charged thereby;

(c) not register a financing change statement or a change demand which relates to the Goods on the PPSR, or affects the priority of the Seller’s security interest, without the prior written consent of Seller;

(d) give Seller not less than 14 days prior written notice of any proposed change in the Buyer’s name and/or any other change in the Buyer’s details; and

(e) immediately advise Seller of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.

14.8 The Buyer waives any right to receive a copy of a verification statement in accordance with section 148 of the PPSA.

14.9 Nothing in sections 114(1)(a), 133 and 134 of the PPSA will apply to these terms, or the security under these terms, and the Buyer waives the Buyer’s rights under sections 116, 120(2), 121, 125, 126, 127, 129 and 131 of the PPSA.

14.10 Seller’s Remedies: Without prejudice to any of the Seller’s other remedies (and whether or not the Seller has exercised any other right), if an Enforcement Event occurs in relation to the Buyer, then at any time after that Enforcement Event occurs:

(a) by written notice to the Buyer, the Seller may cancel any outstanding contract or order with the Buyer including, for the avoidance of doubt, the Trade Confirmation and any Shipment thereunder;

(b) any moneys payable by the Buyer to the Seller whether due for payment or not shall become immediately due and payable;

(c) the Seller reserves the right, and the Buyer hereby irrevocably provides consent to the Seller, to enter (whether forcibly or otherwise), by its employees or authorised agents, onto the Buyer’s premises, or onto any premises where Goods owned by the Seller are reasonably thought to be stored and repossess and subsequently resell such Goods; and

(d) the Seller may appoint any person to be a receiver of all or any of the Goods. In addition to, and without limiting or affecting any other powers and authorities conferred on a receiver, a receiver has the power to do all things in relation to the Goods as if the receiver has absolute ownership of the Goods.

15. Miscellaneous

15.1 Entire agreement: The Trade Confirmation and these terms (and any incorporated documents, including any schedule thereto) are the entire agreement between the parties and replace all representations, agreements and other communications made by the Seller or the Buyer.

15.2 Variations must be in writing: No modification of the Trade Confirmation or these terms is valid unless agreed in writing.

15.3 Notices: Each notice or other communication to be given or made under the Trade Confirmation or these terms to any person:

(a) Writing: must be given or made in writing by electronic mail, fax or letter;

(b) Address: must be given or made to the recipient to the address, fax number or email in the Trade Confirmation, and marked for the attention of the person (if any), specified in the Trade Confirmation; and

(c) Deemed delivery: shall not be effective until received by the recipient, and any such notice or communication shall be deemed to be received:

(i) (if given or made by letter) when left at the address of the recipient or 10 days after being put in the post (by airmail if to another country), postage prepaid, and addressed to the recipient at that address;

(ii) (if given or made by fax) upon production of a transmission report by the machine from which the fax was sent which indicates that the fax was sent in its entirety to the fax number of the recipient; or

(iii) (if given by electronic mail) upon production of a printed copy of an email which evidences that the email was sent to the email address of the recipient,

provided that any notice or communication received or deemed received after 5pm on a business day in the place to which it is sent, or on a day which is not a business day in that place, shall be deemed not to have been received until the next business day in that place.

15.4 Partial invalidity: If at any time any provision of these terms is or becomes illegal, invalid, void or unenforceable in any respect under the law of any jurisdiction, that will not affect or impair:

(a) the legality, validity or enforceability in that jurisdiction of any other provision of these terms; or

(b) the legality, validity or enforceability under the law of any other jurisdiction of that or any other provision of these terms.

15.5 Waiver:

(a) No waiver of a breach of any provision of these terms or the Trade Confirmation operates as a waiver of another breach of that provision or of a breach of any other provision of these terms or the Trade Confirmation.

(b) A waiver given by the Seller under these terms or the Trade Confirmation is only effective and binding on the Seller if it is given or confirmed in writing by the Seller.

15.6 Governing law:

(a) The Trade Confirmation and these terms shall be governed by, and construed in accordance with, the laws of New Zealand, and the parties hereby submit to the jurisdiction of the courts of New Zealand.

(b) The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.