EXIM Trading Global Pty Ltd Trading Terms
These Agency Trading Terms are the terms of trade of EXIM Trading Global Pty Ltd when acting in the trade of horticulture produce.
These Agency Trading Terms constitute a horticulture produce agreement for the purposes of the Horticulture Code between EXIM Trading Global Pty Ltd (as set out in item 1 of the Schedule) and the Supplier/Grower (as set out in Item 2 of the Schedule), appointing that EXIM Trading Global Pty Ltd is to act as agent for the Grower in respect of the Produce in item 3 of the Schedule, with effect from the Commencement Date set out in item 4 of the Schedule.
- In this document, “Terms” means these Agency Trading Terms, unless the Schedule has been signed in which case “Terms” will mean the Horticulture Produce Agreement that consists of these Agency Trading Terms and the Schedule.
- Nothing in these Terms obliges EXIM Trading Global Pty Ltd to accept any Produce from the Grower pursuant to these Terms. EXIM Trading Global retains an absolute discretion whether or not to accept Produce pursuant to these Terms.
- The Grower warrants (by accepting the packing orders each time the Supplier/Grower provides Produce to EXIM Trading Global) that it is the owner of the Produce, it has authority to appoint EXIM Trading Global as agent pursuant to these terms and that the Produce is of merchantable quality, fit for its purpose and strictly meets the specifications for that Produce set out in item 5 of the Schedule (“Specifications”).
- Unless otherwise agreed between the parties, the Produce will be delivered to EXIM Trading Global (at the address specified by
the EXIM Trading Global from time to time) at the Grower’s risk, cost and expense.
- The Grower will pay EXIM Trading Global a commission for all Produce sold by the EXIM Trading Global pursuant to these Terms, as set out in item 6 of the Schedule (“Commission”), or as otherwise varied by agreement in writing by the parties from time to time.
- EXIM Trading Global has the right to charge, and the Grower will pay, for any additional expenses arising from the sale of the Produce pursuant to these Terms, including without limitation freight, packing, packaging, storage or as permitted under any other agreement between the parties.
- Subject to clause 9, EXIM Trading Global will pay the Grower any proceeds that EXIM Trading Global receives for the sale of the Produce, after deducting the Commission and Expenses applicable to the Produce sold (and, if elected by EXIM Trading Global, after deducting any amounts owing to the EXIM Trading Global by the Grower under any other agreement) (“Proceeds”). EXIM Trading Global acknowledges that the deduction of Commission or Expenses under this clause constitutes payment of those amounts by the Grower.
- EXIM Trading Global may pool the Produce it receives from the Grower with produce of the same variety and quality which is received from other growers.
- If EXIM Trading Global pools the Produce, the Proceeds will be calculated based on the average price EXIM Trading Global receives for the sale of pooled Produce (per count, grade and variety) packed during for the relevant container (Pooled Produce), after then deducting (a) Commission, based on that average price and (b) Expenses, which for each Expense can
be the actual Expense for that Grower’s produce in that container or the average Expense incurred by EXIM Trading Global for the sale of Pooled Produce. EXIM Trading Global acknowledges that the deduction of Commission and/or Expenses under this clause constitutes payment of those amounts by the Grower.
- Unless otherwise agreed, payment of the Proceeds will be made to the Grower in accordance with the payment terms set out in item 7 of the Schedule. If any Proceeds that are paid to the Grower are subsequently discovered to relate to a bad debt, the EXIM Trading Global may elect to deduct the amount of such Proceeds from any future amounts payable to the Grower, provided that EXIM Trading Global repays any Commission charged for the sale that relates to the bad debt.
- The Grower consents to EXIM Trading Global selling the Produce to any third party that EXIM Trading Global thinks fit, including any related body corporate of EXIM Trading Global. The Grower also consents to EXIM Trading Global selling the Produce in any location that EXIM Trading Global thinks fit, including a state or territory other than that in which the Produce was originally delivered to EXIM Trading Global.
- EXIM Trading Global will pursue customers for payment of bad debts, but is not required to take legal action against customers in respect of bad debts. EXIM Trading Global will give details of bad debts, including the relevant buyer’s name and contact details, to the Grower on request.
- The Grower will indemnify EXIM Trading Global for any amounts that EXIM Trading Global pays to a liquidator, receiver, trustee in bankruptcy or any other insolvency practitioner in respect of any monies previously received by EXIM Trading Global on account of the Proceeds.
- EXIM Trading Global will provide a statement (“Statement”) to the Grower which, in respect of each successive month, will detail the following:
a. the date or dates of the sale of the Produce during the period;
b. the type and quantity of the Produce sold during the period;
c. the price received for the Produce sold during the period;
d. details of the Commission and any Expenses deducted from the Proceeds during the period;
e. the dates at which Produce was delivered to EXIM Trading Global during the period;
f. details of any Produce delivered to EXIM Trading Global during the period that remains unsold at the end of the period, and the reasons why the Produce was not sold;
g. details of any unsold Produce that was destroyed during the period (and the costs of destruction);
h. details of any unsold Produce that is held by EXIM Trading Global at the end of the period.The Statement will be delivered by the end of the following month after the reporting period and is prima facie evidence of the accuracy of the matters set out in (a) to (h) above, in the absence of manifest error. Unless otherwise requested by the Grower, the Statement will be taken to have been delivered to the Grower if it is made available for collection at EXIM Trading Global’s premises.
- The Grower, at its own expense, will punctually make the Produce available for inspection by EXIM Trading Global at the time and location as instructed by EXIM Trading Global from time to time. The Produce must be made available by the Grower to EXIM Trading Global strictly in accordance with EXIM Trading Global’s instructions, which may be varied from time to time at the absolute discretion of the EXIM Trading Global. The Produce is made available at the sole cost of and risk of the Grower.
- In addition to EXIM Trading Global’s rights under clause 2, EXIM Trading Global or its nominated representative will inspect the Produce and may reject all or some of the Produce for the following reasons:
a. where all or some of the Produce does not meet the Specifications;
b. where EXIM Trading Global determines that all or some of the Produce is unfit for sale by EXIM Trading Global; or
c. where all or some of the Produce is not made available for inspection strictly as directed by EXIM Trading Global.
- If the EXIM Trading Global rejects all or some of the Produce it will:
a. immediately contact the Grower to advise what amount of the Produce is rejected;
b. confirm that rejection, and the reasons for rejection, in writing within 5 business days; and
c. at the risk and cost of the Grower, return the rejected Produce to the Grower (or make it available for collection by the Grower’s nominated representative), or destroy the Produce if requested by the Grower.
- The Grower acknowledges and agrees that the Produce may contain latent quality defects which do not manifest until after the Produce has been made available to EXIM Trading Global. EXIM Trading Global reserves its right to exercise its rights and remedies under this clause with respect to Produce that manifests such latent quality defects after the Produce has been inspected and accepted by EXIM Trading Global in accordance with clause 17. A written statement by EXIM Trading Global asserting a latent quality defect in Produce, together with reasonable evidence of the defect, the cost and damages to EXIM Trading Global of the defect and when the defect became apparent to EXIM Trading Global will be prima facie evidence of such matters. The cost and damages suffered by EXIM Trading Global as a result of a latent quality defect will be payable by the Grower, or (in EXIM Trading Global’s sole discretion) may be set off and deducted from any monies payable by EXIM Trading Global to the Grower.
- The Grower indemnifies the EXIM Trading Global for all loss, damage, costs or expenses arising from any breach by the Grower of these Terms including without limitation the warranties in clause 3.
- Where these Terms constitute a Horticulture Produce Agreement, then the Terms may:
a. be terminated by either party on no less than 90 days’ notice, subject to the Grower’s cooling-off rights in the Horticulture Code; and
b. only be varied as agreed in writing between the parties.
- If a dispute arises between the parties, a party may deliver a notice to the contact person specified in items 1 or 2 of the Schedule (as appropriate) setting out the terms of the dispute. Each party must use its reasonable endeavours to resolve the dispute by negotiations with the other. If either party gives notice that it wishes the dispute to be determined in accordance with the procedure in Division 5.2 of the Horticulture Code, the other party must participate in that procedure.
- All dollar amounts expressed in or pursuant to these Terms are exclusive of GST. The Grower is responsible for payment of all GST arising from any supply made by the EXIM Trading Global under this agreement.
- All rights subsisting to the parties at termination shall survive termination.
- EXIM Trading Global’s liability for any loss arising pursuant to these Terms is limited to the amount recovered by the EXIM Trading Global from its insurers for such loss.
- These Terms are governed by the law of the State of Victoria and the parties submit to the non-exclusive jurisdiction of the state of Victoria.
- These Terms may be executed in counterparts. All counterparts when taken together are taken to constitute the one agreement.
- By accepting the Packing Order, the Grower agrees to the Agency Trading Terms outlined.
SCHEDULE – HORTICULTURE PRODUCE AGREEMENT DETAILS
1. EXIM Trading Global Pty Ltd:
Company name: EXIM Trading Global
ABN: 95 636 228 969
Postal Address: Suite 13.02 401 Docklands Drive, Docklands Victoria 3008
Contact person: Brad Senn
Telephone: 0410 330 217
2. Grower: Grower listed on packing order
3. Produce: All Horticulture Produce
4. Commencement Date: The date on which the packing order is received by the Grower.
5. Produce quality specifications:
The specifications provided by the EXIM Trading Global Company to the Grower from time to time.
6. Commission: Agreed commission multiplied by the price at which Produce is sold by the EXIM Trading Global, excluding GST but before deducting rebates or any other amounts
7. Payment terms: Proceeds will be paid to the Grower within 30 days after the EXIM Trading Global has received payment in cleared funds for the whole consignment.