1.0 The “HiveXchange” is the commercial entity that owns the “Hivefloor” – a trading platform that allows wholesale buyers of primary produce to find and trade directly with sellers of primary produce.
1.1 “Seller” shall mean the Seller (or any person acting on behalf of and with the authority of the Seller) as registered on the HiveXchange and who makes a specific offer to sell produce on the HivXchange.
1.2 “Buyer” shall mean the Buyer (or any person acting on behalf of and with the authority of the Buyer) as registered on the HiveXchange and who makes a specific offer to buy produce from a seller.
1.3 “Goods” shall mean Goods supplied by the Seller to the Buyer (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the quotation and invoices as provided by the Seller to the Buyer.
1.4 “Services” shall mean all Services supplied by the Seller to the Buyer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.5 “Price” shall mean the price payable for the Goods as agreed between the Seller and the Buyer in accordance with clause 4 of this contract.
1.6 “Order confirmations” are specific orders confirmed by the seller and created by the Hivefloor. They contain specific information about order agreements between buyer and seller and have a unique identifier associated with each confirmation.
The Competition and consumer act, the horticultural code of conduct and Fair Trading Acts (“FTA”)
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the competition and consumer act, the horticultural code of conduct or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
3.1 Once an order placed by a Buyer is accepted by a Seller the order is binding and the terms contained in this agreement apply.
3.2 The Buyer shall give the Seller and the HiveXchange not less than fourteen (14) days prior written notice of any proposed change of ownership of the Buyer’s business or any change in the Buyer’s name and/or any other change in the Buyer’s details (including but not limited to, changes in the Buyer’s address, facsimile number, or business practice). The Buyer shall be liable for any loss incurred by the Seller as a result of the Buyer’s failure to comply with this clause.
Price And Payment
4.1 The Price shall be:
(a) the Seller’s quoted Price on the Hivefloor (subject to clause 4.2) which shall be binding upon the Seller once an order has been received from the Buyer at that quoted price and accepted by the Seller.
(b) Order acceptance is always in the form of an order confirmation through the Hivefloor.
(c) Unless the costs of delivery are specifically included in the Price in the relevant invoice or quote, such costs shall be charged in addition to the Price and will be payable by the Buyer.
4.2 The Seller reserves the right to change the Price in the event of a Buyer requesting a variation to the Seller’s quotation.
4.3 At the Seller’s sole discretion a deposit may be requested as part of the terms of this contract.
4.4 At the Seller’s sole discretion:
(a) payment shall be due 14 days after delivery of the Goods; or
(b) payment terms may be negotiated and agreed in writing with reference to the specific order being placed through the HiveXchange..
4.5 Payment will be made by direct credit, or by any other method as agreed to between the Buyer and the Seller.
4.6 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
4.7 Levies when they are due, are the responsibility of the buyer and/or seller and the HiveXchange may at its discretion work with the owners of the levy systems to automate collection as part of the order process.
Delivery Of Goods
5.1 Delivery of the Goods shall take place when
(a) the Buyer takes possession of the Goods at the Buyer’s nominated address (in the event that the Goods are delivered by the Seller or the Seller’s nominated carrier) or
(b) if the Buyer collects the Goods from the Seller’s farmgate then at the point the Goods are loaded on the conveying vehicle at the Seller’s premises or elsewhere.
5.2 The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Buyer is unable to take delivery of the Goods as specified in the order confirmation, then the Seller shall be entitled to charge additional reasonable fees for extra costs involved in delivery and storage.
5.3 Delivery of the Goods to a third party nominated by the Buyer is deemed to be delivery to the Buyer for the purposes of this agreement.
5.4 The Seller may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions as agreed in the order confirmation.
5.5 If due to circumstances beyond the control of the Seller, the Seller cannot deliver the Goods (or any of them) per the terms of the order confirmation
5.5 a) The seller must notify the buyer and the HiveExchange in writing within 24 hours of becoming aware of circumstances impeading delivery.
5.5 b) The HiveXchange will cancel the order and this will be registered in the audit log of both the buyer and seller accounts on the HiveFloor and
5.5 c) the transaction will be considered cancelled without any recourse.
6.1 The Seller and Buyer agrees that ownership of the Goods shall not pass until:
(a) the Buyer has paid the Seller all amounts owing for the particular Goods; and
(b) the Buyer has met all other obligations due by the Buyer to the Seller in respect of all agreements between the Seller and the Buyer.
6.2 Until payment is received by the Seller, the Seller’s ownership or rights in respect of the Goods shall continue.
6.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until the Seller shall have received payment and all other obligations of the Buyer are met; and
(b) in the event of any dispute (see section 8), until such time as ownership of the Goods shall pass from the Seller to the Buyer, the Seller may give notice in writing to the Buyer to return the Goods or any part of them to the Seller or a Sellers nominated receiver at the Sellers cost. Upon such notice the rights of the Buyer to obtain ownership or any other interest in the Goods shall cease.
7.1 If the Seller retains ownership of the Goods nonetheless, all risk for the Goods passes to the Buyer on delivery.
7.2 The Buyer must hold adequate insurance in respect of the produce once the produce is delivered to the Buyer.
7.3 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Buyer, the Seller is entitled to receive full payment for the Goods and, where full payment is not received by the Seller, all insurance proceeds payable in respect of the Goods.
8.1 The Buyer shall inspect the Goods on delivery and shall within forty-eight (48) hours of delivery (time being of the essence) notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote.
8.2 A buyer can only reject a seller’s goods if it does not meet the advertised produce type, quantity, or specifications, or delivery commitments as stated on the order confirmation between the Buyer and Seller for the specific delivery. As a guide the freshspecs for fresh produce http://freshmarkets.com.au/fresh-specs/ shall be used as a benchmark for an acceptable consignment of produce.
8.3 If the Buyer decides to reject the Sellers produce they are to provide written notification of the rejection and explain in full what the problem is, confirm an inspection has taken place, provide photographic evidence of the problems, and what remedies are wanted by the Buyer.
8.4 The Buyer shall afford the seller, or sellers representative, an opportunity to inspect the Goods at any time following delivery if the Buyer believes the Goods are defective in any way. Those requests need to be made in writing by the Seller, and the Buyer is obligated to respond in good faith.
8.5 If the Buyer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage.
8.6 For defective Goods that the Seller has agreed in writing that the Buyer is entitled to reject, the Seller’s liability is limited to the value of those goods as defined in the order confirmation.
8.7 If those defective goods are a reasonably significant amount of the total order, the Buyer is entitled to reject the entire order with the Sellers liability limited to the value of the goods as defined in the order confirmation.
8.8 If the seller and buyer cannot reach agreement on the matters in dispute, the seller may request and nominate an independent third party to inspect the goods and discover the facts. That inspection must be conducted by a bona fide independent horticulture inspector and the HiveXchange recommends the horticulture mediation advisor http://www.hortcodema.com.au/dres.html
A list of assessors can be found here:
At the time of writing these terms, the Australian Government subsidises the mediator’s fees to ensure the service is available to all parties. However, parties must pay their own expenses to attend mediation sessions. Also, parties must pay in equal proportion any videoconference, telephone conference and venue costs incurred by the mediator.
A mediator does not make a binding decision and the Buyer and Seller agree to consider the assessment in good faith and agree on remedies as soon as practical but no later than within ten (10) days of the goods being delivered.
8.9 At any time a party to a transaction may approach the ACCC to seek redress for a mischief or wrong doing.
9.1 Returns will only be accepted provided that:
(a) the Buyer has complied with the provisions of Clause 8 and
(b) the Seller has agreed in writing to accept the return of the Goods or pass the Goods onto to a nominated person or company; and
(c) the Seller will not be liable for Goods which have not been stored or used in a proper manner; and
(d) the Goods are returned in the condition in which they were delivered and with all packaging material in as new condition as is reasonably possible in the circumstances.
Defaults & Consequences of Default
10.1 If the payment method described in 4.4 a) is selected then
10.1 a) interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two percent (2%) per calendar month and such interest shall compound monthly at such a rate after as well as before any judgement.
10.1 b) If the Buyer defaults in payment of any invoice when due, the Buyer shall indemnify the Seller from and against all costs and disbursements incurred by the Seller in pursing the debt including legal costs on a solicitor and own client basis and the Seller’s collection agency costs.
10.2 Without prejudice to any other remedies the Seller may have, if at any time the Buyer is in breach of any obligation (including those relating to payment), the Seller may suspend or terminate the supply of Goods to the Buyer and any of its other obligations under the terms and conditions. The Seller will not be liable to the Buyer for any loss or damage the Buyer suffers because the Seller has exercised its rights under this clause.
11.1 In the event that the Buyer cancels delivery of Goods the Buyer shall be liable for any loss incurred by the Seller (including, but not limited to, any loss of profits) up to the time of cancellation.
Privacy Act 1988
12.1 The Buyer agrees for the HiveXchange to obtain from a credit reporting agency a credit report containing credit information about the Buyer.
The Seller shall be under no liability whatever to the Buyer for any indirect loss and/or expenses (including loss of profit) suffered by the Buyer arising out of a breach by the Seller of these terms and conditions.
In the event of any breach of this contract by the Seller the remedies of the Buyer shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
The Buyer shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Buyer by the Seller.
The Buyer agrees that the HiveXchange may review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which the HiveXchange notifies the Seller and the Buyer of such change.
Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lockout, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
The members agree that:
19.1. They use HiveXchange at their own risk.
19.2. That services of HiveXchange are provided on an “as is” and “as available basis”.
19.3. To the extent permitted by law HiveXchange make no express or implied warranties, terms and/or conditions (including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement.)
19.4. HiveXchange (including its affiliates, parent, associated entities) to the extent permitted by the applicable law is not liable, for any damages or losses (including, but not limited to, loss of money, goodwill or reputation, profits, or other intangible losses or any special, indirect, or consequential damages) resulting directly or indirectly from:
members use or inability to use the HiveXchange Services;
disruptions to the HiveXchange service
malicious software obtained by linking to HiveXchange
damage to hardware from accessing HiveXchange
representations, misrepresentations, actions or inactions of third parties (which for the avoidance of doubt include members of HiveXchange)
the HiveXchange is not subject to any equitible remedy such as specific performance, injunction, or other equitible remedy.
Members specifically indemnify and hold harmless HiveXchange (including its employees, officers, directors affiliates, parent, associated entities) from any claim made by 3rd parties (and any amounts payable under such claims including the reasonable legal costs of the indemnified HiveXchange parties) arising from the Member’s use of the services, or breach of any law or regulation by the members.
Intellectual Property – members agree not to use any of the intellectual property of the HiveXchange
Members are specifically prohibited from using the service for their own promotion other than as contemplated by this agreement.
If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales and are subject to the jurisdiction of the courts of New South Wales.
Any trade that occurs through the HiveXchange is governed automatically by the terms of this agreement unless specific written terms or amendments are agreed in writing for specific order confirmations.