Terms And Conditions

DEFINITIONS
1. “Grape Trade” means Echo Software Limited trading as Grape Trade.
2. Seller: A person/s who has registered on Grape Trade as a Seller using the online registration form and has the authority on behalf of the Seller to list their grapes for sale and accept suitable offers made by Buyers which binds the Seller and the Buyer to the price and other terms of the sale.
3. Buyer: A person/s who has registered on Grape Trade as a Buyer using the online registration form and has the Authority to present offers which will bind the Buyer should the Seller accept their offer, either as a Leading Bid or Accepted Bid, within the Bid Period.
4. Accepted Bid: At any time through the auction, the Seller may accept a Buyer’s bid which is then termed the Accepted Bid. This bid effectively wins the auction and the auction terminates. Otherwise a Leading Bid which has reached its expiry date, defaults to the Accepted Bid. There can be no further negotiations once a bid is accepted (the Accepted Bid) and the Buyer is committed to buy and the Seller is committed to sell as per the price and terms of the Accepted Bid.
5. Bid Period: A Buyer may choose to advise an expiry date of any duration as a condition of their offer. This Bid Period is at the sole discretion of the Buyer and may be of any duration. If the Seller has not selected this bid as a Leading Bid or Accepted Bid, then the Buyer’s offer will expire at the date and time they have specified. If the Seller selects the bid as a Leading Bid or Accepted Bid before the expiry date, then the provisions of Clauses 1.4 and 1.7 will be in force.
6. Grape Trade and Echo Software: Grape Trade is the registered Trade Mark of Echo Software Ltd. Where one entity is used in terminology without the other, registered Buyers and Sellers recognise the legal relationship between the trade-marked entity (Grape Trade) and the trading entity (Echo Software Ltd) as being one in the same.
7. Leading Bid: A Leading Bid is where the Seller has demonstrated they are prepared to commit to sell their grapes at the price and other terms offered by the Buyer by selecting a Buyer’s offer. However, should they so choose, the Seller may select a more favourable offer which in turn becomes the Leading Bid provided the more favourable offer or bid is chosen before the current Leading Bid expires. If no other bid is accepted at the expiry of the Buyer’s bid deadline (the Bid Period), the Buyer’s bid defaults to the Accepted Bid and the Buyer wins the auction. The Seller must sell to the Buyer at the price and terms of the Buyer’s bid.
8. Listing: Details of the grape crop including variety, region and tonnage that the Seller is offering for sale through the Grape Trade auction website.
9. Show Interest (Shown Interest): Once a Buyer has registered, they may view full details of any Seller’s listings by selecting the ‘Show Interest’ option. No bid is necessary at this stage but this option allows the Seller to gauge the level of interest in their listing. This also flags, for Grape Trade’s benefit, that an introduction has occurred and success fee obligations commence if the grapes are sold either through the auction site or through any other process outside of the auction site, whether it be to a registered Buyer or any other unregistered party.
10. Sales Disclosure Form: On acceptance of the Bid, Grape Trade will forward a Sales Disclosure form to the Buyer, Seller or both parties requesting all relevant details pertaining to the successful grape sales transaction. This may include price, bonuses (if applicable), tonnage, payment terms and quality criteria. Both the Buyer and the Seller agree to complete this form promptly and return this form to Grape Trade within 7 working days for the calculation of applicable success fees.
11. Success Fee is the percentage based commission payment due to Grape Trade from the Seller for the sale of Grapes through the Website or for any sales transaction conducted through any other forum.
PRICE AND PAYMENT.
1. Once the bid has been accepted. Grape Trade will issue an invoice to the Seller for the amount of the success fee calculated from the Accepted Bid. This amount will be due in full on the 20 th day of the month following the acceptance of the bid.
2. Payment Adjustment. The actual weight of the grapes or total value of the trade at the time of Delivery may vary from the Accepted Bid estimate. This may be either a surplus or a shortfall in quantity or a variation to price based on agreed quality criteria. In either case both parties must advise Grape Trade in writing through the supplied Sales Disclosure document the actual weight of the Grapes delivered. This must be completed within Seven (7) days of delivery.
3. Where an adjustment is required Grape Trade will calculate the adjustment and either
  - Issue an additional invoice for the increased amount to the Seller or;
  - issue a credit for the Grapes.
4. Other than as described in clause 2.3(b) The Success Fee is not refundable.
CONSEQUENCES OF DEFAULT ON PAYMENT
1. Where the Seller defaults on Payment of an invoice Grape Trade shall have the right of charging interest at 2.5% per calendar month compounding from the date when payment is due until payment is made.
2. The Seller shall indemnify Grape Trade from and against all costs incurred in recovering debt including but not limited to Collection Agency Fees, costs and any legal costs on a Solicitor and own Client basis.
ACCEPTANCE
1. By registering through the online registration form, Buyers and Sellers acknowledge that Grape Trade ™ through its legal entity, Echo Software Ltd, is offering access to its Website and the unique buying and selling functionality that it offers and as such it is understood that you accept these terms and conditions.
REGISTRATION FOR BUYERS AND SELLERS
1. There is no charge to register as a Seller. Registration can occur at any time during the year but applies only to the current or upcoming vintage and is valid until the 30 th of June in the year of harvest. Accordingly, registration must be renewed annually. You may only register as a Seller if your trading entity is registered in New Zealand.
2. A registered Seller may withdraw their listing at any time prior to receiving a Buyers Show of Interest. From receipt of the Show of Interest the Seller is obliged to pay the Success Fee.
3. Details of a Seller’s listing can only be accessed by registering as a Buyer and paying a Registration fee. Such fee will be disclosed on the online Registration form. Registration can occur at any time during the year but applies only to the current or upcoming vintage and is valid until 30 th of June in the year of harvest. Accordingly, registration must be renewed annually.
4. Registration will give full visibility of the Sellers listing once the ‘Show Interest’ option is selected by the Buyer. The Buyer’s details and identity will only be visible to the Seller once the ‘Show Interest’ option is selected. No bid is necessary at this stage but this option allows the Seller to gauge the level of interest in their listing. The identity of the Buyer will not be visible to other Buyers although the details of any Buyer’s bid will be visible to all registered Buyers who have ‘Shown Interest’.
PASSWORDS AND SECURITY:
1. Buyers and Sellers are responsible for the security of access to the Grape Trade site.
TERMINATION OF REGISTRATION:
1. Grape Trade has an unfettered right to decline to register or to terminate registrations of Buyers or Sellers for behaviours which as its sole discretion, it deems to be unacceptable.
REGISTERED SELLERS OBLIGATIONS
1. Sellers may Register with Grape Trade and list their grapes on the Grape Trade website for no charge.
2. Once the grapes are listed however, a success fee based on a percentage of the total value of the sale will be payable to Grape Trade under the following circumstances.
3. If an Accepted Bid is selected by the Seller as part of the auction.
4. If a Leading Bid defaults to an Accepted Bid which occurs when the Seller does not accept another bid within the expiry period of the Leading Bid.
5. If the grapes are sold through any other means, including but not limited to, any private offline arrangement made by the Seller.
6. The Buyer may not affect the price through the use of bonuses, paying of harvesting fee or any such non-cash inducement to the Seller. At the sole discretion of Grape Trade all such offers must be disclosed and a cash conversion value supplied. A success fee will apply to the value of the amount calculated.
7. The success fee percentage will be set at the commencement of each season and will be listed on the Seller registration form at the time of registration. By registering as a Seller, the Seller understands that the success fee will be payable if the grapes are sold through whatever means. All fees will be in New Zealand dollars. GST will be payable on the success fee calculation.
SELLERS OBLIGATIONS
1. Sellers will only place listings for grapes that they are legally entitled to sell.
2. Unless the Seller is listing a fixed parcel of Grapes with a known tonnage or from a known area, the Seller will use their best endeavours to list a realistic estimate of the hectares and tonnes to be sold so that Buyers can elect to ‘Show Interest’ and follow up with enquiries in good faith.
3. It is the Sellers responsibility to furnish all information, provide site access to the Grapes whether on the vine, in Storage or at any other location for the purposes of inspection of the grapes and any other requirements necessary to allow the Buyer to fulfil the requirements of Clause 9.3
4. Sellers will need to enter appropriate contact details during the registration process so that those Buyers who have ‘Shown Interest’ may make direct contact with the Seller with a view to inspecting the grapes and accessing any further information as agreed between the parties.
5. The Seller is free to accept any bid that is made and does not need to sell to the highest bidder. However, by selecting a Leading Bid or by confirming an Accepted Bid, the Seller recognises that a sale is committed to as per the definitions in these terms.
THE BUYERS OBLIGATIONS AND COMMITTMENT
1. Buyers outside of New Zealand are not permitted to bid on Grape Trade, unless specifically authorised in writing by Grape Trade.
2. A Buyer may specify a period over which the bid is valid. If the Seller does not respond to the bid as the Leading Bid or the Accepted Bid within this timeframe, the Buyer’s bid will expire on the date and time specified. The Buyer may choose to resubmit the bid or a modified version of the bid at any time after their previous bid has expired. If the Seller responds to the Buyer’s bid as the Leading Bid and no other bid is received, the Leading bid defaults to the Accepted bid and the Buyer will be obliged to buy and the Seller will be obliged to sell as per the terms and conditions of the Leading Bid. If the Seller responds to the Buyer’s bid as the Accepted Bid, the auction terminates immediately and the Buyer will be obliged to buy and the Seller will be obliged to sell as per the terms and conditions of the Accepted Bid.
3. Buyer’s bids are not retractable once a bid is made. The bid will be valid for the duration of the Bid Period (if set).
4. If a Buyer is notified that their bid has been successful, the Buyer must complete the transaction in the manner specified.
5. Once a Buyer has ‘Shown Interest’ in a listing, the Buyer’s full contact name and contact details will be disclosed to the Seller. At no stage of the auction process will the Buyer’s identity be disclosed to other bidders although all elements of the Buyer’s bid will be fully visible to all other potential bidders who have registered and ‘Shown Interest’.
6. All bids made by the Buyer must be expressed in New Zealand dollars and be specific as to whether they are GST inclusive or exclusive. All tax obligations, levies and other regulatory charges are the responsibility of the Seller and/or the Buyer (as the parties determine).
7. When a Buyer makes contact with a Seller through Grape Trade after having ‘Shown Interest’, the Buyer warrants that they will not enter into any pricing agreement with the Seller outside the Grape Trade auction forum and they undertake that they will bid for the grapes through the Grape Trade website.
8. It is the Buyers responsibility to determine that the Grapes are fit for purpose and take all necessary steps to confirm the accuracy of the description of the Grapes as supplied by the Seller prior to placing a bid.
DISCLAIMERS, LIABILITY AND INDEMNITY
1. While Grape Trade (through Echo Software) provides an online forum to introduce registered Buyers and Sellers of grapes, it is recognised by Buyers and Sellers that Grape Trade and Echo Software does not take any part in the sale process. If a bid is accepted by a Seller, a contract of sale will be formed between the Buyer and Seller directly. Accordingly, Buyers and Sellers acknowledge that Grape Trade has not acted as agent for either party.
2. While Grape Trade may refer in places to the buying and selling of grapes as an online auction, Grape Trade or Echo Software is not an auctioneer (whether under the Auctioneers Act 2013 or otherwise).
3. Without limiting any other rights and remedies available to Grape Trade, Grape Trade may limit registered parties’ activities on the Website, remove bids or listings, issue warnings, suspend or terminate registrations or take any other actions it deems necessary if parties breach these terms and conditions.
BUYERS AND SELLERS RISK
1. Any transaction between Buyers and Sellers is conducted entirely at their own risk. Buyers and Sellers warrant that Grape Trade has no responsibility or liability for any actions by any of the registered parties involved in any transaction which involves the Grape Trade website.
2. Buyers and Sellers acknowledge that they have conducted appropriate due diligence on each other and warrant that Grape Trade gives no warranties and carries no risk exposure to any grapes bought or sold on the website including but not limited to:
  - legal title of the Seller’s grapes
  - the suitability of the grapes for the Buyer’s intended purpose including market requirements, spray programmes or residues or any other potential defect or contamination that may detrimentally impact on the Buyer’s Bid.
  - the accuracy or truth of the Seller’s listing claims
  - the ability of a registered Seller or Buyer to complete a transaction including the capacity of the Buyer to pay the Seller for the grapes
USE OF WEBSITE DISCLAIMER
1. Grape Trade provides the website on an "as is" and "as available" basis.
2. Grape Trade will make best efforts to ensure that the Customer receives continual and uninterrupted Services during the term of this agreement. Under no circumstances shall Grape Trade be liable to the Customer for damages resulting from or in relation to any failure or delay of Grape Trade to provide Website Services under this agreement if such delays or failures are due to circumstances beyond our control. Such a failure or delay shall not constitute a default under this agreement.
3. Grape Trade does not warrant that any service provided will be uninterrupted, timely, secure, or error free, or that any information provided on the Website is error-free or reliable.
4. To the maximum extent permitted by law and without limiting any other rights and remedies, Grape Trade disclaims and excludes all implied conditions or warranties, including, but not limited to, any warranties of merchantability, fitness for a particular purpose, and non-infringement by either the Seller or the Buyer.
LIMITATION OF LIABILITY AND INDEMNITY
1. Liability. Registered Buyers and Sellers agree that, to the maximum extent permitted by law, any and all liability and responsibility of Grape Trade to them or any other persons under or in connection with these terms and conditions, or the Grape Trade Website, another registered Buyer or Seller’s acts or omissions, or the Buyers or Seller’s use of or inability to use, this Website, is excluded regardless of whether such liability arises in contract, tort (including negligence), equity, breach of statutory duty or otherwise. Grape Trade’s liability and responsibility is excluded in respect of any and all loss or damage, whether direct or indirect, including, without limitation, loss of profits, loss of data, loss of business or anticipated savings, general and special damages, and consequential and incidental loss.
2. Indemnity: Registered Buyers and Sellers agree to release, indemnify and keep indemnified Grape Trade (Echo Software) from and against all actions, claims, costs (including legal costs and expenses), losses, proceedings, damages, liabilities, or demands suffered or incurred by Grape Trade to any person arising out of or in connection with the Buyer’s and Seller’s failure to comply with these terms and conditions and their failure to complete a transaction.
PRIVACY ACT 1993
1. The Customer and the Guarantors (if separate to the Customer) authorises the Seller to collect, retain and use any information about the Customer, for the purpose of assessing the Customers creditworthiness or marketing any Goods and services provided by the Seller to any other party.
2. The Customer authorises the Seller to disclose any information obtained to any person for the purpose set out in clause 15.1
3. Where the Customer is a natural person the authorities under (clause 15.1 and 15.2) are authorities or consents for the purpose of the Privacy Act 1993.
DISPUTE BETWEEN BUYER AND SELLER
1. Grape Trade is not a party to any sale or transaction between Buyers and Sellers using the Grape Trade website. Accordingly, Buyers and Sellers agree not to involve Grape Trade in any dispute or in the resolution of disputes that arise between Buyers and Sellers as a result of transactions conducted through the website.
GOVERNING LAW
1. These terms and conditions are governed by the laws of New Zealand and will be subject to the jurisdiction of the Courts of New Zealand.
INTELLECTUAL PROPERTY
1. Grape Trade through Echo Software owns all proprietary and intellectual property rights in the Website and the software and other material underlying and forming part of the operation of the Website. Parties may not in any form or by any means:
  - Adapt, reproduce, copy, store, distribute, display, perform, publish or create derivative works from any part of this Website; or
  - Commercialise, copy, or on-sell any information, or items obtained from any part of this Website
GENERAL
1. 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 or prejudiced or impaired.