By issuing an Order to Elders Rural Services Australia Limited ABN 72 004 045 121 (trading as Elders Water Trading) (‘Elders’), you, the Customer, agree to be bound by the following terms and conditions. Please note the following:
- You may revoke your Order at any time before it has been Matched. Once your Order has been Matched, you have a binding contract with the other party who you have agreed to buy the Water Product from or sell your Water Product to.
- You must do all things necessary to complete any purchases that Elders affects in accordance with your Order. If you do not, you may be in breach of the Terms and may be liable to compensate the other party to the Trade.
- You may amend your Order in terms of the volume of water being bought or sold, and the maximum or minimum sale price by notifying Elders at any time before your Order is Matched. Those amendments will take effect on Elders issuing a written confirmation of amendment (which can be via SMS or email).
- If a Trade is not Completed because you supplied Elders with incorrect or incomplete information, then you will be responsible for the Fees to relodge the Application with the relevant Water Authority.
- If a Trade is not Completed because of restrictions in the trading relationships between your water region and the other party’s water region, the Trade will be deemed to be void. Any further applications for the transfer of the Water Product (including in relation to any further Fees) may be negotiated between you and the other party.
- The sale is subject to the written approval of all relevant Water Authorities.
- You acknowledge that in some circumstances Elders may be representing both buyer and seller in the same transaction and may receive a commission and/or fee from both parties to the Trade. This will present a conflict of interest. If such conflict arises, Elders will inform you in writing and deal with the conflict as detailed in these Terms (see clause 2.4 below).
1. Definitions and interpretation
1.1 (Definitions) In these Terms:
“Application” means an application to a Water Authority for the assignment of a Water Product as a result of a Trade;
“Business Day” means a day on which banks are open for business in Adelaide, South Australia other than a Saturday, Sunday or public holiday;
“Buy Order” means an offer to buy a Water Product in such form as Elders may require from time to time;
“Buyer” means any person who places a Buy Order with Elders;
“Completed” means, in respect of a Trade:
(a) a Buy Order has been Matched with a Sell Order;
(b) the relevant Water Authority has approved the Application relevant to the Trade;
(c) the relevant Water Product has been assigned to the Buyer free of all encumbrances, charges, liens, mortgages and other adverse or third-party interests; and
(d) payment of Fees in respect of the Trade has been made to Elders and the Seller;
“Confidential Information” means details of Trades and in relation to Elders means, trade secrets, confidential know-how, client lists, prospective client lists, supplier lists, price lists, employee lists, information about products and services in development, financial information about Elders, information about the business or affairs of Elders, the terms of Elders’ agreements with clients, suppliers and employees and computer software owned or used by Elders of which the Customer becomes aware or generates which is not in the public domain;
“Customer” means a person who submits an Order to Elders;
“Dry Terms” means the Permanent Entitlement being Traded will include any Temporary Allocation granted after the later date of the Trade being Matched and Elders receiving a deposit for the purchase of the Water Product from the buyer.
“Elders” means Elders Rural Services Australia Ltd ACN 004 045 121 (trading as “Elders Water Trading”);
“Fees” means the monies that Elders, from time to time, advises the Customer will be payable by the Customer to affect a Trade, including:
(a) the purchase price of the Water Product;
(b) any fees charged to Elders by the Water Authority in relation to an Application;
(c) brokerage charges payable by the Customer to Elders; and
(d) any other monies outstanding in relation to a Trade;
“Force Majeure Event” means any cause or an event beyond the control and without the fault or negligence of Elders, including:
(a) acts of God or public enemies;
(b) acts of government;
(c) acts of terrorism; and
(d) war, riots, fires, floods, strikes, lock outs, epidemics, quarantine restrictions or freight embargoes.
“Forward Allocation” means a temporary water allocation which is to be transferred from the Seller to the Buyer in a future water year or later in the same water season after an agreed date;
“Interest Rate” means the daily buying rate displayed at or about 10.30am (Sydney time) on the Reuters screen Bank Bill Swap (BBSW) page for Australian bank bills of 3-month duration, plus 3%;
“Match” or “Matched” means to match a Sell Order with a corresponding Buy Order to generate a Trade;
“Order” means a Buy Order or a Sell Order;
“Parties” mean Elders and the Customer;
“Sell Order” means an offer to sell a Water Product in such form as Elders may require from time to time;
“Seller” means any person who places a Sell Order with Elders;
“Terms” means these “Terms and Conditions”;
“Trade” means the sale and purchase of a Water Product;
“Temporary Allocation” means a water allocation issued by a Water Authority to a Permanent Entitlement and available for trade by way of assignment in the current Water Year;
“Permanent Entitlement” means a water entitlement or right issued in perpetuity by a Water Authority, which may be bought or sold on Dry Terms or Wet Terms;
“Water Authority” means any entity that is, from time to time, authorised by law to receive, process and approve Applications, including:
(a) the South Australian Department of Environment, Water and Natural Resources;
(b) the Victorian Department of Environment, Land, Water and Planning;
(c) the New South Wales Department of Primary Industries;
(d) the Murray Darling Basin Authority; and
(e) irrigation infrastructure operators.
“Water Brokerage Services” means affecting a Trade of a Water Product;
“Water Product” includes Temporary Allocations, Forward Allocations, Permanent Entitlements and such other products as Elders may notify the Customer from time to time are included in this definition; and
“Water Year” means the period from 1 July to 30 June.;
“Wet Terms” means the Permanent Entitlement being Traded will include any Temporary Allocation granted from the 1st of July in the year of the Trade being Matched.
1.2 Interpretation
In these Terms, unless the contrary intention appears:
(a) the singular includes the plural and vice versa;
(b) any gender includes the other genders;
(c) “includes” means includes without limitation;
(d) if a word or phrase is defined its other grammatical forms have the corresponding meanings;
(e) an obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them (as the case may be) jointly and severally;
(f) a reference to a party includes that party’s executors, administrators, successors and permitted assigns;
(g) a reference to a document is to that document as varied, novated, ratified or replaced from time to time;
(h) references to “dollars” or “$” are to Australian dollars;
(i) these Terms are not to be interpreted against a party only because that party put them forward;
(j) headings are for convenience only and do not affect interpretation;
(k) if the date on or by which any act must be done under these Terms or an Order is not a Business Day, the act must be done on or by the next Business Day; and
(l) where time is to be calculated by reference to a day or event, that day or the day of that event is excluded.
2. Water Brokerage Services
2.1 From time to time, the Customer may, by issuing an Order to Elders, request Elders to provide Water Brokerage Services to the Customer.
2.2 Elders may, in its absolute discretion, agree to provide Water Brokerage Services in response to the issue of an order in accordance with clause 2.1 above. If Elders decides to provide Water Brokerage Services to the Customer, it expressly disclaims any warranty or guarantee that a Customer will be able to buy or sell the Water Products specified in the Order.
2.3 By issuing an Order to Elders in accordance with clause 2.1 above, the Customer:
(a) agrees to be bound by these Terms;
(b) authorises Elders to arrange a Trade that is consistent with the Order (including by executing documents on behalf of the Customer);
(c) authorises Elders to provide all information required by the relevant Water Authority to process the Application relating to the Trade;
(d) authorises Elders to affect the transfer of the relevant Water Product relating to the Trade (including by executing documents on behalf of the Customer);
(e) must do all things within its power, or as reasonably requested by Elders, to ensure that a Trade that Elders has so arranged is Completed; and
(f) acknowledges and agrees that Elders is in no way liable if a Water Authority does not approve an Application.
2.4 The Customer:
(a) acknowledges that Elders may have received an Order from both the Seller and the Buyer in connection with a particular Trade and that Elders may, accordingly, receive remuneration in the form of a commission or fee from both the Vendor and the Buyer;
(b) consents to Elders acting in accordance with Orders received from both the Vendor and the Buyer in connection with a particular Trade notwithstanding any conflict of interest that may arise subject to Elders disclosing that conflict to you, the Customer, in writing (a) before the Water Brokerage Services are provided to you, or (b) as soon as reasonably practicable after Elders becomes aware of the potential or actual conflict, and you, the Customer, confirm in writing to Elders that you have received the disclosure; and
(c) acknowledges that the relationship between Elders and the Customer is otherwise one of independent contractors only.
2.5 If Elders, or a related party of Elders, has or will have a material personal interest in respect of a Trade, Elders will not provide any Water Broking Services to you. Where this has or may occur, Elders will notify you in writing before any Water Broking Services are provided, or, if that is not possible, as soon as practicable after first becoming aware of the material personal interest.
2.6 The Customer may withdraw or amend an Order by providing notice in writing to Elders at any time before the Order is Matched. The Customer acknowledges and agrees that its amendment or withdrawal will take effect on Elders issuing confirmation in writing of the amendment or withdrawal.
3. Payment
3.1 Payments to Elders
(a) Subject to clause 3.1(b) below, Elders will, upon a Trade being Matched, invoice the Customer for any Fees payable by the Customer to affect that Trade. The Customer must pay all invoiced Fees within 3 Business Days of the date of the invoice.
3.2 Payments by Elders
(a) Elders will pay any monies due to a Seller Customer in respect of a Trade, on the later of:
(i) the date that Elders receives in full the Fees in respect of the Trade; or
(ii) the date which is 5 Business Days after Elders receives notice from the relevant Water Authority that:
(A) it has approved the Application and transferred the Water Products in respect of the Trade to the Buyer; or
(B) approval of the Application and/or transfer of the Water Products in respect of the Trade remains conditional only upon the release of monies due to the Seller.
(b) Elders may deduct from any amounts in respect of a Trade that are payable to a Seller Customer any monies due to Elders and the relevant Water Authority in relation to that Trade (including any arrears payable in respect of the Water Product).
(c) Elders may add to any amounts in respect of a Trade that are payable by a Buyer Customer any monies due to Elders and the relevant Water Authority in relation to that Trade.
3.3 Interest
Elders may require the Customer to pay interest on overdue monies. Any interest payable will be calculated daily by applying the Interest Rate to the overdue monies. The right to require payment of interest under this clause 3.3 is without prejudice to any other rights Elders may have against the Customer at law or in equity in relation to the overdue monies.
3.4 Fees held on Trust
Elders holds all Fees paid by a Customer on trust for that Customer until disbursed in accordance with these Terms. Such Fees:
(a) shall be repaid to the Customer less any amount deductible in accordance with clause 6.3 below in the event that the Application is not approved by the relevant Water Authority;
(b) shall be repaid to the Customer if the Trade fails and clause 6.3 below does not apply and the Customer has done all things required of it pursuant to these Terms; and
(c) any interest that accrues on Fees held in trust is paid by the relevant financial institution to the government regulator.
4. Forward Allocation
For Orders in relation to Forward Allocations and Matched Trades:
(a) Seller Customer acknowledges that the volume of allocation sold must be delivered to the Buyer on the delivery date regardless of the future seasonal allocation or available allocation granted to the Seller Customer’s licence; and
(b) Buyer Customers acknowledge that:
(i) a deposit equal to 20 per cent of the purchase price will be payable to Elders immediately upon the Trade being Matched; and
(ii) the remaining 80 per cent of the purchase price and any other Fees will be payable at least 5 Business Days before the nominated delivery date.
5. Warranties
5.1 (Customer’s warranties) The Customer warrants to Elders that:
(a) where the Customer is an individual, the Customer is 18 years or older;
(b) all the information contained in an Order, and otherwise provided by the Customer to Elders, is true and complete;
(c) by issuing an Order, it will not breach any law, regulation or order; and
(d) the Customer is able to pay its debts as and when they fall due and has no reason to believe that it will not continue to be able to pay its debts as and when they fall due.
5.2 (Warranties for the benefit of other customers) In relation to Water Products described in:
(a) a Sell Order, the Customer warrants in favour of the Buyer and Elders that:
(i) the Customer is the sole legal and sole beneficial owner of those Water Products (or is otherwise authorised to enter into these Terms and issue the Sell Order by all other owners of the Water Products); and
(ii) the Customer has the power to contract with the Buyer to transfer those Water Products to the Buyer; and
(b) a Buy Order, the Customer warrants in favour of the Seller and Elders that:
(i) the Customer has the power to contract with the Seller and to accept the transfer of those Water Products; and
(ii) the Customer is aware that those Water Products are subject to the relevant regulations and laws applicable to the Water Product and any conditions disclosed by the Seller to the Customer.
6. Failure of a Trade
6.1 Buyer’s failure to pay Fees
(a) If a Buyer Customer fails to pay invoiced Fees then, without prejudice to any other rights that Elders or the Seller Customer may have under these Terms, Elders may require the Buyer Customer to do all things within its power to reverse the Trade.
(b) The Buyer Customer is liable to the Seller Customer for all costs associated with the reversal of a Trade, including any shortfall between what the Seller Customer would have received from the Trade to which the Buyer Customer was a party and what the Seller Customer receives as a result of entering into a further Trade with another Buyer in respect of that Water Product.
(c) Elders is not liable to a Seller Customer for a Buyer Customer’s failure to pay any Fees.
6.2 Seller’s failure to deliver Water Product
(a) If a Seller Customer fails to deliver a Water Product the subject of the Trade then, without prejudice to any other rights that Elders or the Buyer may have under these Terms, Elders may require the Seller Customer to do all things within its power to reverse the Trade.
(b) The Seller Customer is liable to the Buyer Customer for:
(i) any increase between what the Buyer Customer would have paid in relation to the Trade to which the Seller Customer was a party and what the Buyer Customer ultimately pays as a result of entering into a further Trade in respect of a Water Product that is equivalent to the Water Product that was to be sold by that Seller Customer; and
(ii) the amount of any penalty imposed by a Water Authority that the Buyer Customer may incur as a result of acting on the basis that the Water Product the subject of the Trade would be transferred to the Buyer Customer by the Seller Customer.
(c) Elders is not liable to a Buyer Customer for a Seller Customer’s failure to deliver a Water Product.
6.3 Application not approved
(a) If the relevant Water Authority declines an Application, no Fees will be payable by the Buyer, the Seller or Elders in relation to the Trade to which the Application related, unless the Water Authority rejected the Application as a result of the actions of the Customer in which case, the Customer will be liable to Elders for the costs incurred by Elders, and any charges made by the Water Authority, in relation to the Trade.
(b) The Customer must pay the costs
(c) and charges referred to in clause 6.3(a) above within 10 Business Days of an invoice from Elders advising of the amount of the costs and charges. The Customer agrees that Elders may debit such costs and charges directly from the bank account to which any Direct Debit Authority relates.
(d) Without limiting clause 6.3(b) above, the Customer must indemnify Elders against any direct or indirect losses, costs (including legal costs on a full indemnity basis), expenses, claims, demands or any other actions which may be brought against Elders or suffered or incurred by Elders directly or indirectly as a result of the Customer’s failure to make a payment in relation to a Trade in accordance with these Terms.
7. Termination
7.1 Termination by Elders
Elders may terminate an Order and these Terms:
(a) by notice effective immediately:
(i) if the Customer breaches these Terms and, where the breach is capable of being remedied, the Customer does not remedy that breach within 14 days of the date of Elders’ notice;
(ii) if the Customer stops paying its debts when they become due or is declared or taken under any applicable law to be insolvent or is likely to become insolvent or any other step is taken by the Customer or any other person which leads or may lead to the Customer being unable to deal with its assets as it may decide; or
(iii) if in Elders’ opinion, the Customer’s activities are damaging, or likely to damage, Elders’ reputation; or
(b) by giving the Customer 30 days’ notice in writing.
7.2 Termination by the Customer
Provided that Elders has not started to Match any Trades, the Customer may terminate these Terms or any Order at any time by completing, executing and providing to Elders, a notice of termination in the form required by Elders.
7.3 Actions on termination
(a) The parties agree that termination of these Terms does not affect any rights that have accrued to the parties prior to the termination of these Terms.
(b) On the effective date of termination of these Terms the Customer must pay all Fees due by it to Elders and all other amounts payable by the Customer in relation to any Trades in which the Customer was involved prior to termination.
(c) On the effective date of termination of these Terms, Elders must pay to the Customer, any amounts due by Elders to the Customer subject always to the rights of Elders under clause 3.2 above.
7.4 Indemnity
The Customer must indemnify Elders against any direct or indirect losses, costs (including legal costs on a full indemnity basis), expenses, claims, demands or any other actions which may be brought against Elders or suffered or incurred by Elders directly or indirectly as a result of the Customer’s activities in connection with these Terms, including as a result of, or in connection with, the execution by Elders on behalf of the Customer of any Application or document relating to an Application.
8. Force majeure and limitation of liability
8.1 Force majeure
(a) Elders will be relieved from the performance of its obligations under these Terms to the extent and for the duration that such performance is prevented by a Force Majeure Event.
(b) Elders shall not be obliged to settle strikes or other industrial disputes on terms not acceptable to it. If a Force Majeure Event occurs or is likely to occur, Elders shall notify the Customer promptly of the occurrence of such Force Majeure Event in writing. Elders must take all reasonable steps to remedy the circumstances giving rise to the Force Majeure Event and to minimise the effect of such circumstances upon performance of its obligations under these Terms.
(c) Elders must resume its obligations under these Terms as soon as it is no longer affected by a Force Majeure Event.
8.2 Limitation of liability
(a) To the extent permitted by law and subject to clause 8.2(b) and clause 8.2(c) below, the liability of Elders to the Customer for any loss or damage arising out of or in connection with the supply of services or products under these Terms or any breach by Elders of these Terms however arising (whether for breach of these Terms, tort, statute, equity otherwise at common law or on any other basis) is limited to:
(i) in the case of the supply of services (including Water Broking Services), the re-supply of the services by Elders to the Customer; and
(ii) in the case of the supply of products (including Water Products), the re-supply of the products by Elders to the Customer.
(b) Clause 8.2(a) above is not intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of the Australian Consumer Law set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
(c) Elders agrees to indemnify the Customer against any direct or indirect losses that Customer suffers as a result of the negligent, fraudulent or dishonest acts or omissions of, or breach of these Terms by, Elders, its employees, contractors and agents, or any of them.
9. GST
9.1 Interpretation
(a) Except where the context suggests otherwise, terms used in this clause 9 have the meanings given to those terms by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(b) Any part of a supply that is treated as a separate supply for GST purposes (including attributing GST payable to tax periods) will be treated as a separate supply for the purposes of this clause 9.
(c) Unless otherwise expressly stated, all consideration to be provided under these Terms is exclusive of GST. Any consideration that is specified to be inclusive of GST must not be taken into account in calculating the GST payable in relation to a supply for the purpose of this clause 9.
9.2 Reimbursements and similar payments
Any payment or reimbursement required to be made under these Terms that is calculated by reference to a cost, expense, or other amount paid or incurred will be limited to the total cost, expense or amount less the amount of any input tax credit to which an entity is entitled for the acquisition to which the cost, expense or amount relates.
9.3 GST payable
(a) If GST is payable in relation to a supply made under or in connection with these Terms then any party (“Recipient”) that is required to provide consideration to another party (“Supplier”) for that supply must pay an additional amount to the Supplier equal to the amount of that GST at the same time as other consideration is to be provided for that supply or, if later, within 7 days of the Supplier providing a valid tax invoice to the Recipient.
(b) Where additional amounts are payable between parties to these Terms pursuant to clause 9.3(a) above, amounts so payable, to the extent they are equivalent in amount, shall be set off against each other as if paid and each party shall be obliged only to provide the tax invoice referred to in clause 9.3(a) no later than the time at which any consideration is to be first provided for that supply.
9.4 Variation of GST
If the GST payable in relation to a supply made under or in connection with these Terms varies from the additional amount paid by the Recipient under clause 9.3(a) above then the Supplier will provide a corresponding refund or credit to, or will be entitled to receive the amount of that variation from, the Recipient. Any payment, credit or refund under this clause 9.4 is deemed to be a payment, credit or refund of the additional amount payable under clause 9.3(a) above. Where there is an adjustment event, the Supplier must issue an adjustment note to the Recipient as soon as the Supplier becomes aware of the adjustment event.
9.5 No merger
This clause will not merge on termination of these Terms.
10. General Provisions
10.1 Governing Law and Jurisdiction
These Terms and any Order issued pursuant to them are governed by the law applying in South Australia. Each party irrevocably submits to the non-exclusive jurisdiction of the courts of South Australia, the Adelaide registry of the Federal Court of Australia, and to courts of appeal therefrom, to decide any disputes arising from or in relation to these Terms and any Order issued pursuant to them.
10.2 Entire agreement and amendment
These Terms and any Orders issued and Matched pursuant to these Terms form the entire agreement between Elders and the Seller Customer and the Buyer Customer in relation to a Trade and replaces and supersedes all past discussions, representations, agreements or understandings, whether written or oral.
10.3 Notices
Any notice that must be served on either party under these Terms must be in English, in writing and signed by the party or its authorised representative. Notice can only be given to a party: (a) personally; (b) by post or email to the address of the recipient previously notified; or (c) where the recipient is a company, pursuant to any provision of the Corporations Act 2001 (Cth) that relates to the service of notice on corporations. Where a party is a partnership, notice to one partner is effective notice to all. Notice sent by post is deemed to be received two Business Days following the date on which it was posted. Notice sent by email is deemed to be received immediately upon being sent, unless an error message or a delivery failure message is generated.
10.4 Waiver
Without limiting any other provision of these Terms, the parties agree that any failure or delay by a party to enforce one or more of these Terms will not be taken as a waiver of that party’s rights under those terms or the right at any time subsequently to enforce all pf these Terms.
10.5 Assignment and Successors
The Customer may not assign its interest in these Terms or any Orders Matched pursuant to them except with the prior written consent of Elders, such consent not to be unreasonably withheld. Elders may assign its rights and obligations under these Terms at any time without the consent of the Customer.
10.6 Severability
If any part of these Terms are void, illegal or unenforceable it is to be severed from these Terms to the extent to which such severance can occur without affecting the remaining provisions and those remaining provisions will remain in full force and effect.
10.7 Further Assurances
Each party will promptly execute all documents and do all things that another party from time to time reasonably requires of it to effect, perfect or complete the provisions of these Terms or any transaction contemplated by it, and to use all reasonable endeavours to cause relevant third parties to do likewise.
10.8 Company
If the Customer is a corporate entity, Elders is entitled to assume that any person issuing an Order on behalf of the Customer is duly authorised to issue the Order and agree to these Terms on behalf of the Customer unless the Customer or that person notifies Elders in writing to the contrary. Notwithstanding this, Elders will take reasonable steps to confirm that a Customer representative is in fact authorised.
10.9 Trusts
If the Customer enters into these Terms as the trustee of a trust, the Customer warrants that:
(a) it also enters into these Terms in its personal capacity and Elders can enforce these Terms against the Customer in that capacity;
(b) the Customer is authorised to enter into these Terms and to comply with its obligations as trustee of the trust; and
(c) the Customer is entitled to be indemnified out of the trust’s assets for any costs, expenses, damages or liabilities that the Customer incurs under these Terms.
10.10 Partnership
If the Customer is a partnership, Elders is entitled to assume that any partner individually is properly authorised to represent the partnership and bind all partners to agreements or other obligations, unless the Customer notifies Elders in writing to the contrary.
10.11 Complaints
All complaints relating to these terms, any Trades, Water Broking Services and/or Water Products will be dealt with in accordance with Elders’ Water Complaints Handling Policy. A copy of that policy is available at the following link: [INSERT].
10.12 Amendment to Terms
These Terms may only be amended by written agreement of all parties.
10.13 Privacy
(a) You, as Customer, acknowledge that information relating to you is required to be collected, used and disclosed to consider, prepare, arrange, complete or process a Trade, including personal information. Elders will specifically collect, use and disclose your personal information for the purpose of providing Water Broking Services to you. You consent to Elders collecting, using and disclosing personal information for that purpose which may include disclosing information to a Water Authority or other intermediary (acting for another party to a Trade) or providing the information for use on a water trading platform, such as the Water Exchange (WEX).
(b) Elders will otherwise collect, use and disclose personal information in accordance with its privacy policy, a copy of which is available on the Elders website.
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