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Terms and Conditions For Malcolm Campbell Livestock
Conditions under which stock and /or chattels described on the other side hereof are sold and purchased through the agency of Malcolm Campbell Livestock (the Agent):
- 1. The purchaser shall pay in cash without deduction or set-off the purchase price to the Agent within 10 days of the date recorded for delivery PROVIDED HOWEVER that the Purchaser shall pay such deposit as is recorded on the execution of this agreement, which shall be retained by the Agent on behalf of the Vender. The Agent shall be entitled to retain any interest earned on the deposit, but shall pay the deposit included in the purchase price in accordance with clause 4.
In the event that the Purchaser disputes liability for the payment of the whole or any part of the purchase price, the Purchaser shall (time being of the essence) give written notice to the Agent setting out particulars of the dispute, within five days of the date recorded for delivery and the Agent shall hold the purchase price, or so much as is in dispute, pending resolution of the dispute.
- 1.1 If the Purchaser fails to make payment of the purchase price or any part thereof on the due date, then the Agent shall charge interest to the Purchaser on the amount outstanding for the period from due date until the date of receipt by the Agent, at the rate then currently being charged by the Agent for overdue accounts.
- 1.2 Notwithstanding that payments are outstanding by the Purchaser the Agent may make an advance to the Vender of an amount or amounts up to a sum equal to the Purchase price. For the avoidance of doubt, the Agent is under no obligation to make such payment to the Vendor. Forward payment or part payment to the Vendor prior to payment being made in full by the Purchaser shall be at the sole discretion of the Agent.
- 1.3 Any interest received by the Agent from the Purchaser, relevant to clause 1.1 herein, on moneys not advanced to the Vendor pursuant to clause 1.2 herein, shall be paid, subject to reasonable administration and collection costs, to the Vendor.
- 1.4 In the event that all or any moneys are not paid by the Purchaser, the Vendor hereby authorises the Agent to take such steps as it sees fit to recover such moneys owing and the Vendor shall pay the reasonable costs and expenses of the Agent in endeavouring to effect such recovery, provided however that this does not place any obligation on the Agent to take any steps to recover.
- 1.5 The Agent has no liability or responsibility whatsoever to the Vendor for the failure of the Purchaser to make the payment in full or in part for the stock sold to the Purchaser pursuant to this agreement.
- 2. The delivery of the stock shall be the responsibility of the Purchaser.
- 2.1. The vendor shall have the stock available to the purchaser on the date and at the place recorded for delivery, provided however that if the Vendor is in default of this provision then the words “the date recorded for delivery” shall read in this clause and the following clauses as “the date of actual delivery”.
- 2.2. From the date of this sale note, until the date recorded for delivery the Vendor shall properly feed and if necessary procure suitable grazing at the Vendor’s expense and attend to the stock as a prudent farmer should, having regard to the nature and quality of the said stock and of the farm upon which the same are depasturing and the Vendor agrees that the stock are at the Vendor’s risk until the date recorded for delivery.
- 3. In the event of either party:
- 3.1. Repudiating this contract, or
- 3.2. Being in breach of any term or terms. The Agent shall not be responsible to either party for loss or damage of any kind, howsoever sustained or arising and without limiting this provision the Agent shall not be responsible for any guarantee or description of the stock made by the Vendor to the Purchaser and should the Vendor make any written guarantee or undertaking to the Purchaser then the Agent may retain not more than 10% of the sale proceeds (the Retained Funds).
- 4. The Vendor and Purchaser respectively shall each –
- 4.1. Indemnity and keep indemnified the Agent in respect of any claims, demands, proceedings, damages, costs and expenses (“liability”) and including liability for indirect or consequential loss, or loss of profits, income or savings, suffered or incurred by the Agent arising from or as a result of third party claims against the Agent where that liability is a result wither directly or indirectly and whether in whole or in part, of the actions, inactions, fraud, fault or negligence of Vendor or Purchaser, as the case may be, or their agents and employees.
- 4.2. Indemnify and keep indemnified the Agent in respect of any liability (as that term is defined in clause 4.1 above) and including liability for indirect or consequential loss, or loss of profits, income or savings, suffered or incurred by the Agent arising directly from any act, omission or otherwise of the Agent by virtue of or in connection with the proper performance of its powers, authorities and discretions under this agreement. This indemnity shall not apply for the benefit of the Agent in the event that the liability has been caused by negligence or intentionally incurred as a result of fraud or malice of an employee of the Agent.
- 5. Subject to the conditions herein, after deduction of its selling commission and charges and any retention for Vendor guarantees and/or undertakings, the Agent shall pay to the Vendor the proceeds of the sale within fourteen (14) days from the settlement of this sale, PROVIDED HOWEVER that the Retained Funds shall be paid to the Vendor by the Agent, subject to satisfaction of the Vendor guarantees and/or undertakings, on the expiration of five weeks from the date of delivery.
- 6. The property in the stock shall not pass to the Purchaser until payment of the purchase moneys is made in full to the Agent. For the avoidance of doubt, at no time will the Agent take any ownership interest in the stock under this agreement nor hold any risk in respect of damage to or loss of the stock.
- 7. Any carrier or drover or any other person to whom delivery of the stock may be given, whether nominated or appointed by the Purchaser, or by the Agent on the Purchaser’s behalf, shall for all purposes be deemed to be contracting directly with the Purchaser. The Agent shall not be in any way liable or responsible for any act or omission of such carrier, drover or any other person.
- 8. The rights and remedies of the Agent, under these conditions, shall not be affected by reason of the Agent having deducted commission and/or other charges and/or any retention for Vendor guarantees or undertaking.
- 9. The Vendor warrants to the Purchaser and the Agent that the stock is free from any charge or encumbrance in favour of any third party or shall be free from any charge or encumbrance in favour of any third party as at the date recorded for delivery. The Vendor and Purchaser acknowledge that there is no obligation upon the Agent to enquire into the existence of charges or encumbrances or to clear or have cleared any such charge or encumbrance by the date recorded for delivery but that the Agent may make enquires as to the existence of any such charge or encumbrance and may further, from the purchase price, or any other moneys that they hold on behalf of the Vendor, clear such charge or encumbrance and the Vendor shall pay to the Agent its reasonable costs of any such enquiry and/or arranging satisfaction of any such charge or encumbrance.
- 10. No person whether employed by the Agent or otherwise, shall be authorised to alter any of the conditions of sale without the written consent of the National Livestock Manager of the Agent.
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