2016/2017 Port Terminal Services Agreement for Standard Port Terminal Services

Transcription

1 2016/2017 Port Terminal Services Agreement for Standard Port Terminal Services Dated Viterra Operations Pty Ltd (ABN ) ( Viterra ) Company Name ABN/CAN/ARBN Client Name

2 2016/2017 Port Terminal Services Agreement for Standard Port Terminal Services Contents Details 1 General terms 2 1 Defined terms & interpretation Defined terms Interpretation 8 2 Term and application of Agreement Commencement, duration and application Continued provision of Port Terminal Services 10 3 Acknowledgement of limited application 10 4 Port Terminal Services Supply of Port Terminal Services Availability Capacity management Port Loading Protocols 11 5 Wheat Receival Services Application of clause Acceptance of Bulk Wheat Acceptance of Bulk Wheat from third parties on behalf of the Client Client to be nominated as the owner Weighing Contaminants No capacity Reservation of Cell Required Services Wheat Storage Services Application of clause Common stock Title Client's interest Right to move Bulk Wheat /2017 Port Terminal Services Agreement for Standard Port Terminal Services i

3 7 Wheat Ship Loading Services Application of clause Shrinkage, Dust & Outturn Entitlement Outturn Standards Weighing DA sampling Delays Cleanliness Non-shipment Transfers of title Security Interests Non-grain commodities Reconciliation and adjustment 18 8 Charges and payment Charges No obligation to extend credit Set-off Transfer of liability GST Default in payment Interest on late payments Security Genuine assessment of loss 21 9 Title to Wheat Bailment Nomination by Viterra Insolvency Lien and Security Interest Viterra's lien and Security Interest Common stock Retention of possession Enforcement against others Compliance with operational protocols Obligations of Client Publication Information Viterra's information Client's information /2017 Port Terminal Services Agreement for Standard Port Terminal Services ii

4 13 Viterra's Liability Acknowledgement Non-excludable warranties Limitations on Viterra's liability Third party claims Multiple caps on liability Mitigation Insurance and Risk Risk Maintenance of insurance Force Majeure Definition Suspension of obligations Allocation of Capacity following Force Majeure Event Notice Minimisation of impact Obligation to mitigate Payments Labour Disputes Dispute Resolution Disputes Negotiation Referral to mediation Appointment of mediator Mediation Status quo Suspension and termination Right to suspend and terminate Suspension by Viterra Termination by Viterra Termination by the Client Effect of termination No prejudice Indemnity By Client /2017 Port Terminal Services Agreement for Standard Port Terminal Services iii

5 19 Notices How to give a notice When a notice is given Address for notices Confidentiality Treatment of Confidential Information Dispute resolution No endorsement Prohibition Acknowledgements No assignment Waiver No impact Further exercise No Partnership Relationship Approvals and consents No liability Governing Law and Jurisdiction Governing law Jurisdiction Sub-Contracting Severance PPS law General Entire agreement Counterparts This Agreement may be signed in any number of separate counterparts, which taken together will comprise one instrument No representations Exercising rights Variations Guidelines 37 Signing page /2017 Port Terminal Services Agreement for Standard Port Terminal Services iv

6 2016/2017 Port Terminal Services Agreement for Standard Port Terminal Services Details Parties Viterra and Client Viterra Name Viterra Operations Pty Ltd ABN Address Level 1, 186 Greenhill Road Parkside, SA 5063 Fax (08) Telephone (08) Attention General Manager Logistics and Commercial Relations Client Name ABN Address Fax Telephone Attention Commencement Date 1 October 2016 Expiry Date 30 September 2017 Recitals A. Viterra is the operator of the Port Terminal Facilities and the provider of the Port Terminal Services. B. Under the Code, Viterra is required to make available its Standard Terms for each Port Terminal Facility that it owns or operates. This Agreement is the Standard Terms /2017 Port Terminal Services Agreement for Standard Port Terminal Services 1

7 C. The Client wishes to be provided by Viterra with Port Terminal Services on the Standard Terms, and the Parties have accordingly entered into this Agreement. 2016/2017 Port Terminal Services Agreement for Standard Port Terminal Services General terms 1 Defined terms & interpretation 1.1 Defined terms In this Agreement: ACCC means the Australian Competition and Consumer Commission. Accidental Loss or Damage means Loss to the Client s Bulk Wheat caused or occasioned by events not reasonably within Viterra s control. Additional Amount has the meaning given in clause 8.5. Affected Obligations has the meaning given in clause Affected Party has the meaning given in clause Agreement means this agreement, including all schedules, annexures and attachments. Associated Entity has the meaning given by the Corporations Act. Binned Grade means the Grade of Bulk Wheat stored in a Cell. Booking has the meaning given in the Port Loading Protocols. Bulk Wheat has the meaning given to that term in the Port Loading Protocols. Business Day means a day that is not a Saturday, Sunday or gazetted public holiday in South Australia. Capacity has the meaning given in the Port Loading Protocols. Capped Agreements has the meaning given in clause Cell means a single unit of storage of Bulk Wheat. Charges has the meaning given in clause 8.1. Client s Bulk Wheat means that quantity of Bulk Wheat held by Viterra on behalf of the Client within a Port Terminal Facility, as adjusted for Shrinkage and other matters allowed or required under this Agreement. Code means the Port Terminal Access (Bulk Wheat) Code of Conduct, declared by the /2017 Port Terminal Services Agreement for Standard Port Terminal Services 2

8 Competition and Consumer (Industry Code - Port Terminal Access (Bulk Wheat)) Regulation Commencement Date has the meaning given in the Details. Common Stock has the meaning given to that term in clause 6.2. Confidential Information means information exchanged between Viterra and the Client in relation to the business of those persons that: is by its nature confidential; is specified to be confidential by the person who supplied it; or is known, or ought to be known, by a person using or supplying it to be confidential or commercially valuable; but excludes information that: (e) (f) (g) (h) is comprised solely of the name, address and contact details of a person; or was in the public domain at the time when it was supplied; or subsequently becomes available other than through a breach of confidence or breach of this Agreement; or was in lawful possession of the Party prior to being provided by the Party; or must be disclosed in accordance with the Code or in order to comply with other legal requirements; or ceases to be confidential in nature by any other lawful means. Contaminated Delivery has the meaning given in clause 5.6. Corporations Act means the Corporations Act 2001 (Cth). Credit Risk has the meaning given in clause 8.2 Credit Support has the meaning given in the Port Loading Protocols. DA means the Department of Agriculture. Damaged Bulk Wheat means Bulk Wheat that has been damaged to such an extent that it can no longer be classified by any Receival (Classification) Standards and is only of salvage value or suitable for disposal. Details means the section of this Agreement headed Details. Dispute means a bona fide dispute between the Client and Viterra arising under this Agreement. Dispute Notice has the meaning given in clause Dust means Bulk Wheat dust attributable to the Client s Bulk Wheat extracted from dust collection plants in any Viterra Facility, but excluding Damaged Bulk Wheat. Excess Outturn Entitlement Amount means the amount calculated by multiplying the volume (in tonnes) by which the Bulk Wheat Outturned to the Client exceeds the /2017 Port Terminal Services Agreement for Standard Port Terminal Services 3

9 Client s Outturn Entitlement by the Fair Market Value Price. Excluded Services has the meaning given in clause 3. Expiry Date has the meaning given in the Details. Fair Market Value Price means in respect of a Client s Bulk Wheat, the fair market value (on a per tonne basis) of Bulk Wheat that is: of the same type, Grade and Service Year as the Client s Bulk Wheat; and calculated at the time Viterra or the Client pays the Excess Outturn Entitlement Amount or the Shortfall Outturn Entitlement Amount (as the case requires). Force Majeure Event has the meaning given to that term in clause Grade means a grade of Grain of a given Service Year specified in the Receival (Classification) Standards and Outturn Standards of that same Service Year, or any other grade agreed by the Parties. Grain means the seed of any crop or pasture species of any genus or grade and (for the avoidance of doubt) includes Pulses but excludes minerals and processed or value added products such as malt. Grower means any person involved in the growing of Grain, the contact details for whom have been registered with Viterra or a national grower register. GST has the meaning given in the GST Act. GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended or any replacement or other relevant legislation or regulations. GST Legislation means the GST Act and any related tax imposition Act (whether imposing tax as a duty of customs excise or otherwise) and includes any legislation which is enacted to validate recapture or recoup the tax imposed by any of such Acts. Indirect or Consequential Loss means indirect, consequential or remote loss or any loss in the nature of compensation for loss of production, loss of profit, loss of opportunity, loss of markets, loss of use of money, goods or other property, loss of goodwill or business reputation, any shipping/demurrage costs or fees, or damages or penalties payable under the Client s customer or charter party s contract (whether direct or indirect) including any losses that the Client may suffer in the event that the ability to resell Bulk Wheat is adversely affected or delayed. Insolvency Event means, in relation to a Party: a receiver, receiver and manager, administrator, trustee or similar official is appointed over the whole or a substantial part of the assets or undertaking of the Party and is not removed within 30 days; the Party suspends payment of its debts generally; the Party is insolvent within the meaning of the Corporations Act; the Party enters into or resolves to enter into any arrangement, composition or compromise with, or assignment for the benefit of, its creditors or any class of them; /2017 Port Terminal Services Agreement for Standard Port Terminal Services 4

10 (e) (f) an application (other than a vexatious application) or order is made for the winding up or dissolution of, or the appointment of a provisional liquidator to, the Party or a resolution is passed or steps are taken to pass a resolution for the winding up or dissolution of the Party otherwise than for the purpose of an amalgamation or reconstruction which has the prior written consent of the other Party and, in the case of an application, the application is not withdrawn or dismissed within 60 days; or an administrator is appointed under Division 2 of Part 5.3A of the Corporations Act and, except in the case of an appointment by the Party or its directors, is not withdrawn or removed within 14 days. In-Store Transfer means the transfer of ownership of Bulk Wheat held at a Port Terminal Facility from the Client to another person, or vice versa, as recorded in Viterra s stock systems. Long Term Agreement has the meaning given in the Port Loading Protocols. Long Term Capacity has the meaning given in the Port Loading Protocols. Loss means any damage, payment, charge, loss, cost, liability (whether actual, contingent or prospective), claim or expense (including legal costs and expenses). Mediation Notice has the meaning given in clause Other Client means a person that is provided with a storage service at a Port Terminal Facility (other than the Client or a Grower). For avoidance of doubt, Viterra or an Associated Entity of Viterra may be an Other Client. Outturn means to cause Bulk Wheat physically to leave the custody of Viterra at a Port Terminal Facility, and is taken to occur when the Bulk Wheat exits the delivery spout into a Transportation Vehicle at which point physical custody of the Bulk Wheat passes from Viterra to the Client or a third party authorised by the Client. Outturn Entitlement has the meaning given to that term in clause 7.2. Outturn Standards means the standards published in Schedule G (Register of Outturn Standards) of the Pricing Procedures and Protocols Manual, as amended by Viterra from time to time. Party means, depending on the context, Viterra or the Client and Parties means both of them. Port Loading Protocols means the document of that name as published and amended from time to time by Viterra in accordance with its terms.. Port Terminal means, depending on the context, Viterra s seaboard terminals at: Port Adelaide, Inner Harbour, Berth 27, South Australia; Port Adelaide, Outer Harbor, Berth 8, South Australia; Port Giles, South Australia; Wallaroo, South Australia; (e) Port Lincoln, South Australia; or /2017 Port Terminal Services Agreement for Standard Port Terminal Services 5

11 (f) Thevenard, South Australia. Port Terminal Facility means a ship loader that is: (e) (f) (g) (h) at a Port Terminal; and capable of handling Bulk Wheat; and includes any of the following facilities: an intake/receival facility; a grain storage facility; a weighing facility; or a shipping belt; that is: at the Port Terminal; and associated with the ship loader; and capable of dealing with Bulk Wheat.. Port Terminal Services has the meaning given to that term in the Code and includes, in relation to a Port Terminal, those of the Wheat Receival Services, Wheat Storage Services and Wheat Ship Loading Services that Viterra provides by using one or more of the Port Terminal Facilities at that Port Terminal. PPSA means the Personal Property Securities Act 2009 (Cth) and any regulations made under that Act. Pricing Procedures and Protocols Manual means the document of that name published by Viterra on its website, as varied by Viterra from time to time. Prudential Requirements has the meaning given in the Port Loading Protocols. Pulses means chickpeas, lupins, field peas, faba beans, lentils, vetch, broad beans and all other grain legumes. Purchase Options means the various alternative products offered or to be offered to Growers by the Client for the purchase of Bulk Wheat as submitted to Viterra for display at a Viterra Facility, subject to and in accordance with such procedures and requirements as Viterra may, in its sole discretion, produce and publish from time to time. Receival (Classification) Standards means standards that either: accord with the industry benchmarks established for Bulk Wheat (as varied from time to time by Viterra) and published on Viterra s website prior to the receival of that Bulk Wheat into a Viterra Facility; or are otherwise agreed with the Client. Reference Prices means the schedule of prices for access to each Standard Port Terminal Service for each Service Year as published on Viterra s website and as varied from time to time in accordance with this Agreement. In this Agreement, Reference Prices includes the Explanatory Notes to the Reference Prices as varied from time to time /2017 Port Terminal Services Agreement for Standard Port Terminal Services 6

12 Regulatory Change Event means when one or more of the following events occurs: (e) the price or prices for the supply by Viterra of Port Terminal Services to any person is the subject of a binding decision by any regulator or arbitrator under the Code or in accordance with any other access regime; a scheme is introduced by any Governmental agency requiring or providing for Viterra to gain or hold any licence, permit, authorisation or requiring or providing for Viterra to hold or surrender any certificate, permit or instrument or any such scheme being varied; the provision of access to a Port Terminal becomes subject to any access regime which it was not subject to at the date of this Agreement; the Code is repealed, varied or replaced; or Viterra becomes an exempt service provider (as defined in the Code) in respect of a Port Terminal Facility under the Code. Security Interest has the meaning given in the PPSA. Segregation means the physical separation of the storage of Bulk Wheat by type, Grade, variety or such other distinguishing quality as may be determined by Viterra. Service Year means each period from 1 October to the following 30 September during the Term. Shortfall Outturn Entitlement Amount means the amount calculated by multiplying the volume (in tonnes) by which the Bulk Wheat Outturned to the Client is less than the Client s Outturn Entitlement by the Fair Market Value Price. Shrinkage means loss in the normal storage and handling process, including loss of mass through changes in moisture content, loss in handling, and Waste. Shrinkage does not include Bulk Wheat lost as Dust. Standard Port Terminal Services are Port Terminal Services provided under this Agreement in respect of Bulk Wheat. Standard Terms has the meaning given in the Code. Suspension Notice has the meaning given in clause Term commences on the Commencement Date and ends on the Expiry Date (unless terminated earlier in accordance with this Agreement). Termination Notice has the meaning given in clause Transportation Vehicle means a truck, train or shipping vessel to which the Client requests Bulk Wheat to be Outturned. Up-Country Receival Facility has the meaning given to that term in clause 3. Viterra Facility means any facility owned or operated by Viterra or any Viterra Group Company for the receival and storage of Bulk Wheat, and may include a Port Terminal Facility /2017 Port Terminal Services Agreement for Standard Port Terminal Services 7

13 Viterra Group Company means Viterra Pty Ltd and any Associated Entity of Viterra Pty Ltd. Viterra Road Vehicle Hygiene Requirements means the requirements published by Viterra from time to time on or otherwise displayed or available at a Viterra Facility or required by law (as amended, varied or substituted from time to time). Waste means Bulk Wheat that, as a result of the normal handling process, has been downgraded to Bulk Wheat of no commercial value (for example, mouldy Bulk Wheat or Bulk Wheat mixed with dirt and stones) and includes Damaged Bulk Wheat. Wheat Receival Services means the receival of Bulk Wheat for export from Australia at a Port Terminal by using one or more of the Port Terminal Facilities at that Port Terminal, and involves: (e) sampling, testing and classification on delivery; weighing on delivery; tipping and inward elevation; Segregation; placing into storage; and (f) recording of relevant information. Wheat Ship Loading Services means the Outturn of Bulk Wheat to a shipping vessel at a Port Terminal for export from Australia by using one or more of the Port Terminal Facilities at that Port Terminal and involves: monitoring quality against the Outturn Standard; blending; weighing; outward elevation to the ship loader; and (e) recording of relevant information. Wheat Storage Services means the storage of Bulk Wheat for export from Australia at a Port Terminal by using one or more of the Port Terminal Facilities at that Port Terminal and involves: storage; standard grain protectionand maintenance; dis-infestation; and recording of relevant information. 1.2 Interpretation Headings are for convenience only and do not affect interpretation. The following rules apply unless the context requires otherwise. The singular includes the plural, and the converse also applies /2017 Port Terminal Services Agreement for Standard Port Terminal Services 8

14 (e) (f) (g) (h) (j) (k) (l) (m) (n) (o) (p) (q) A gender includes all genders. If a word or phrase is defined, its other grammatical forms have a corresponding meaning. A reference to a person includes a corporation, trust, partnership, unincorporated body or other entity, whether or not it comprises a separate legal entity. A reference to a clause is a reference to a clause of this Agreement. A reference to an agreement or document (including a reference to this Agreement) is to the agreement or document as amended, supplemented, novated or replaced. Further, a reference to an agreement includes any undertaking, deed, agreement and legally enforceable arrangement, whether or not in writing, and a reference to a document includes an agreement (as so defined) in writing and any certificate, notice, instrument and document of any kind. A reference to writing includes any method of representing or reproducing words, figures, drawings or symbols in a visible and tangible form. A reference to a Party to this Agreement or a party to another agreement or document includes the party's successors, permitted substitutes and permitted assigns (and, where applicable, the party's legal personal representatives). A reference to any Government agency in this Agreement, including to DA, includes that agency s successors. A reference to legislation or to a provision of legislation includes a modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it. A reference to conduct includes an omission, statement or undertaking, whether or not in writing. A reference to dollars and $ is to Australian currency. Mentioning anything after includes, including, for example, or similar expressions, does not limit what else might be included. A reference to time is a reference to the local time in Adelaide, South Australia (unless otherwise stated). Where any matter or thing is required to be attended to or done on a day which is not a Business Day, it will be attended to or done on the next Business Day. Measurements of physical quantities are in Australian legal units of measurement within the meaning of the National Measurement Act 1960 (Cth). Nothing in this Agreement is to be interpreted against a Party solely on the ground that the Party prepared or put forward this Agreement or a relevant part of it. 2 Term and application of Agreement 2.1 Commencement, duration and application This Agreement: /2017 Port Terminal Services Agreement for Standard Port Terminal Services 9

15 commences on the Commencement Date; unless terminated earlier under this Agreement, ends on the Expiry Date; and (iii) applies to all Port Terminal Services provided, or deemed to have been provided, by Viterra to the Client in respect of Bulk Wheat under this Agreement. Subject to clause 2.1(e), if the Client: uses any Port Terminal Services provided by Viterra on or after the Commencement Date; and has not executed this Agreement, the Client s use of those Port Terminal Services will be taken to constitute acceptance by the Client of, and the acquisition of Port Terminal Services by the Client on, these Standard Terms. (e) This Agreement (including the Reference Prices and Port Loading Protocols as varied from time to time) applies to all Bulk Wheat held in Viterra s storage facilities at a Port Terminal Facility on and from the Commencement Date, regardless of when it was delivered to the Port Terminal Facility. Subject to clause 2.1(e), this Agreement supersedes any previous agreement between Viterra and the Client for the provision of Port Terminal Services in respect of Bulk Wheat, and any such previous agreement is expressly terminated. Notwithstanding any other provision of this Agreement, if Viterra and the Client enter into a Long Term Agreement, either before or after the Commencement Date, for the supply of Port Terminal Services in respect of any period during the Term: the Long Term Agreement will supersede and replace this Agreement; and this Agreement will not have any force or effect for the duration of that period. 2.2 Continued provision of Port Terminal Services Unless agreed otherwise in writing by Viterra and the Client, if the Client: acquires any Port Terminal Services from Viterra on or after the Expiry Date; and has not executed a new agreement with Viterra in respect of those Port Terminal Services, the Parties agree that Viterra will provide (if the Client meets the Prudential Requirements), and the Client will acquire, any Port Terminal Services after the Expiry Date on the terms and conditions set out in Viterra s then current Standard Terms. 3 Acknowledgement of limited application The Client acknowledges and agrees that: /2017 Port Terminal Services Agreement for Standard Port Terminal Services 10

16 this Agreement applies only to Standard Port Terminal Services provided by Viterra to the Client in respect of Bulk Wheat, and to the extent regulated by the Code; this Agreement does not apply to the provision of any services by Viterra at a Viterra Facility that is not a Port Terminal Facility (Up-Country Receival Facility); and if the Client acquires receival, transport, storage, outturn or other services from Viterra that are not Standard Port Terminal Services (whether because those services are not provided at a Port Terminal Facility, or because they are provided in respect of Grain that is not Bulk Wheat, or otherwise) (Excluded Services), this Agreement will not apply to the provision of the Excluded Services, and the Client will acquire the Excluded Services either: under any separate agreement that Viterra and the Client make for the provision of the Excluded Services; or otherwise, under the standard terms and conditions that are published by Viterra for the provision of the relevant Excluded Services for that Service Year. 4 Port Terminal Services 4.1 Supply of Port Terminal Services Viterra will provide, and the Client agrees to acquire and pay for, any: Capacity allocated to the Client in accordance with the Port Loading Protocols; and Port Terminal Services provided under this Agreement, in each case on and subject to the terms of this Agreement. 4.2 Availability Subject to clause 4.3, Viterra s obligation to provide a particular Port Terminal Service at a Port Terminal is at all times subject to the availability of the relevant Port Terminal Facility required for that Port Terminal Service at that time. 4.3 Capacity management The Client acknowledges that: nothing in this Agreement prevents Viterra from permitting third parties to use its Port Terminal Facilities for any purpose; certain rights have been granted to Other Clients to use Viterra s Facilities; and there may be capacity constraints in relation to the provision of Port Terminal Services at particular times and that, in managing demand for and in making operational decisions in the course of providing Port Terminal Services, Viterra will comply with the capacity management arrangements set out in this Agreement, including the Port Loading Protocols, and in the Code /2017 Port Terminal Services Agreement for Standard Port Terminal Services 11

17 4.4 Port Loading Protocols The Port Loading Protocols set out the requirements for: Bookings for, and contracting of, all Capacity at the Port Terminals; and all Outturns of Bulk Wheat. The Client agrees to comply with the Port Loading Protocols which the Parties agree form part of this Agreement. The Client: (iii) acknowledges that it has been provided with a copy of the Port Loading Protocols; agrees that the Port Loading Protocols may be varied from time to time in accordance with their terms; and acknowledges that the Port Loading Protocols as varied from time to time are available at The Client and Viterra agree that in the case of any inconsistency between the terms of this Agreement and the Port Loading Protocols, the Port Loading Protocols will apply to the extent of the inconsistency. 5 Wheat Receival Services 5.1 Application of clause This clause 5 applies in relation to the provision of Wheat Receival Services. 5.2 Acceptance of Bulk Wheat The Client must ensure that all Bulk Wheat that is delivered to a Port Terminal Facility for storage and export by Viterra complies with the Receival (Classification) Standards. If Bulk Wheat has characteristics for which a receival standard is neither published nor agreed, Viterra may refuse to receive that Bulk Wheat. Viterra has made the current Commodity Classification Manual available to the Client via Without limiting anything else in this Agreement, Viterra may (when it has reasonable grounds for doing so): refuse to accept a request for a Wheat Receival Service for all or any portion of a Client s Bulk Wheat; or place conditions on the receipt of a Client s Bulk Wheat. 5.3 Acceptance of Bulk Wheat from third parties on behalf of the Client Before accepting Bulk Wheat at a Port Terminal Facility from a third party for sale to the Client and subsequent storage at the Port Terminal Facility on the Client's behalf, Viterra will assess and classify the Bulk Wheat and require the person who has tendered the Bulk Wheat to sign a receival docket setting out the origin, weight, variety, quality, payment grade and the Purchase Option selected by the person. Viterra is entitled to treat Bulk Wheat to which clause 5.3 applies as the property of the person who tendered it and Viterra has no obligation to the /2017 Port Terminal Services Agreement for Standard Port Terminal Services 12

18 Client in respect of that Bulk Wheat until the person who has tendered the Bulk Wheat has signed or otherwise signified acceptance of the receival docket and has complied with clause Client to be nominated as the owner The Client must ensure that, whenever Bulk Wheat is delivered to a Port Terminal Facility by a third party on behalf of the Client, the third party nominates the Client as the owner of the Bulk Wheat and acknowledges that all the third party's right, title and interest to and in the Bulk Wheat is transferred to the Client. The nomination and acknowledgement must be made in writing at the time of the delivery. On receiving the original of the acknowledgement set out in clause 5.4, Viterra will enter the name of the Client in its records as owner of the Bulk Wheat without any further obligation to enquire as to the title of the Client and will hold the Bulk Wheat for the Client subject to the terms of this Agreement. 5.5 Weighing For receival from road transport at a Port Terminal Facility, the Client authorises Viterra to use the weighing equipment nominated by Viterra to determine the receival tonnage. For receival from rail transport at a Port Terminal Facility, the Client authorises Viterra to use Viterra s or the rail service provider s nominated weighing equipment (if available), to determine the receival tonnage. Viterra will use the receival weights of site to site movements on all stock records of the Client. The Client is bound by the determinations made under clauses 5.5 and 5.5 and the records of those determinations in the absence of manifest error. 5.6 Contaminants The Client must not deliver to a Port Terminal Facility (either itself or through its suppliers) any Bulk Wheat that is known or suspected to contain chemical contaminants, residues or a combination of both. If a load of Bulk Wheat is found to be contaminated, the Client will not be permitted to deliver Bulk Wheat to any Port Terminal Facility or other Viterra Facility until the Client has provided Viterra with evidence that there is no further risk of contamination arising from deliveries by the Client to a Port Terminal Facility or Viterra Facility. This may involve further sample inspections and verification of Bulk Wheat produced or owned by the Client by an independent expert, or an inspection by an independent expert of the vehicles or wagons used by the Client to deliver Grain to the Port Terminal Facility. The independent expert must certify to Viterra that the contaminant is manageable and removed prior to Viterra accepting new deliveries. Where Bulk Wheat of any person other than the Client is affected by a contaminant or residue but is nevertheless delivered to a Port Terminal Facility (Contaminated Delivery), Viterra will not be liable to the Client or to any other person for any Loss (including Indirect or Consequential Loss) suffered or incurred directly or indirectly as a result of that Contaminated Delivery /2017 Port Terminal Services Agreement for Standard Port Terminal Services 13

19 5.7 No capacity Without limiting clause 5.2 or clause 5.6, Viterra may decline to receive Bulk Wheat for storage on behalf of the Client at a Port Terminal Facility if: the export storage capacity allocated to a particular Binned Grade at that Port Terminal Facility is already full; and Viterra is unable to make additional space available for that Binned Grade by either movement of the Bulk Wheat to another Viterra Facility or by Outturn of the Bulk Wheat. Nothing in this clause 5.7 requires Viterra to move any Other Client s Bulk Wheat which is in an export position at that time. 5.8 Reservation of Cell The Client may at any time request Viterra to reserve a Cell for use by the Client. Viterra has no obligation to agree to a request by the Client to reserve a Cell for the Client. However, if Viterra agrees to reserve a Cell, that agreement may be subject to: the Client agreeing to pay, and paying, the Cell reservation fee specified by Viterra; and any time limits on the Cell reservation specified by Viterra. If Viterra agrees to reserve a Cell (and the Client pays the Cell reservation fee), Viterra will not, during the reservation period, move the quantity of Bulk Wheat owned by the Client from the relevant Cell without the Client s consent. 5.9 Required Services In acquiring Wheat Receival Services, the Client must acquire such Port Terminal storage and handling services as Viterra, acting reasonably, requires in order to protect the integrity of wheat to be Common Stocked with the Client s wheat and/or to reduce the risk of quality, safety, health, environmental or hygiene claims. The costs of such services and their applicability will be identified in the Reference Prices. 6 Wheat Storage Services 6.1 Application of clause This clause 6 applies in relation to the provision of Wheat Storage Services. 6.2 Common stock 6.3 Title Subject to clause 5.8, unless specifically agreed otherwise, Viterra reserves the right to mix the whole or any part of the Client s Bulk Wheat with wheat of the same specification stored on behalf of any Other Clients or other users at a Port Terminal Facility (Common Stock). Where the Client s Bulk Wheat is Common Stocked, title to the Common Stocked wheat is held in common and in undivided shares by the Client and the Other Clients or users whose wheat forms part of the Common Stocked wheat at the applicable Port Terminal Facility /2017 Port Terminal Services Agreement for Standard Port Terminal Services 14

20 6.4 Client's interest For the purposes of clause 6.3, at any time the Client s share of the Common Stocked wheat will be equal to that proportion which the quantity of the Client s Bulk Wheat at the time bears to the quantity of that Common Stocked wheat at that time. Subject to clause 9.3, the Client does not have the right to nominate any particular parcel or Cell of wheat that is Common Stocked as being owned by the Client. 6.5 Right to move Bulk Wheat Subject to clause 5.8, Viterra reserves the right to move or swap Bulk Wheat either within a Port Terminal Facility or to another Viterra Facility if: (iii) (iv) Viterra reasonably considers that the quality of the Bulk Wheat or the operation of the Port Terminal Facility may be adversely affected if the Bulk Wheat remains in any particular location; the Port Terminal Facility fills, or is expected to fill, during the Service Year; Viterra determines (in its reasonable opinion) that it is operationally efficient to move the Bulk Wheat; or the Client has not provided Viterra with evidence of an intention to ship or otherwise outturn the Bulk Wheat from the Port Terminal Facility. Unless otherwise agreed between the Parties, any movements described in clause 6.5 will be at the expense of the Client. Viterra will use the then current freight rates published by Viterra. 7 Wheat Ship Loading Services 7.1 Application of clause This clause 7 applies in relation to the provision of Wheat Ship Loading Services and other services relevant to the handling and Outturn of Bulk Wheat. 7.2 Shrinkage, Dust & Outturn Entitlement The Client acknowledges and agrees that Bulk Wheat will always suffer Shrinkage and loss from Dust; Viterra is entitled to deduct from the Client s Bulk Wheat a percentage of wheat on account of Shrinkage and Dust. The net quantity of the Client s Bulk Wheat remaining after such deductions is called the Client s Outturn Entitlement (Outturn Entitlement). Viterra will specify the quantum and method of calculation of the deductions for Shrinkage and Dust in the Reference Prices. Viterra will own and be entitled to deal in the quantity of wheat deducted from the Client s Bulk Wheat for Shrinkage and Dust at any time following receival of the wheat at a Port Terminal /2017 Port Terminal Services Agreement for Standard Port Terminal Services 15

21 7.3 Outturn Standards Subject to this clause 7.3, Viterra will Outturn Bulk Wheat to the standards set out in the Outturn Standards. Without limiting clause 18, the Client indemnifies Viterra against all Losses Viterra incurs or sustains, and agrees that Viterra is not liable for Losses the Client incurs or sustains, as a direct or indirect result of Viterra Outturning Bulk Wheat at a standard equal to or exceeding the applicable Outturn Standard, but which fails to meet any export standards imposed by DA or standards imposed by an importing country. If, at the request of the Client, Viterra undertakes any classification testing at the time of Outturn which is over and above that normally conducted by Viterra to ensure Outturned Bulk Wheat meets the minimum standard for the Binned Grade stored, Viterra may charge the Client for that classification testing. 7.4 Weighing The Client authorises Viterra to use batch weighers at the Port Terminal Facility to determine the Outturned tonnage of Bulk Wheat. The Client is bound by the determinations made under clause 7.4, and the records of those determinations, in the absence of manifest error. 7.5 DA sampling The Client acknowledges that Viterra will make Bulk Wheat available for inspection by authorised officers of DA at the Client s cost prior to Outturning Bulk Wheat onto a nominated Transportation Vehicle. The Client acknowledges that the DA may disallow the loading of some portion of the Client s Bulk Wheat at a Port Terminal for reasons of nonconformance to DA export conditions as outlined in the Export Control Act 1982 (Cth) (including detection of live insects, rodents and rattlepod). Viterra is not liable for any Loss incurred by the Client in relation to any failure to load any Bulk Wheat in these circumstances. 7.6 Delays Viterra cannot guarantee that all of the Client s Bulk Wheat will be available for loading when the vessel berths are ready to commence loading due to the potential occurrence of factors outside of Viterra s control (including a variation in vessel arrival times, failure of vessel to pass quarantine, stability and ship worthiness inspections, vessel congestion, variation in cargo requirements, lack of performance of freight providers, or the occurrence of a Force Majeure Event). Viterra will make reasonable efforts to advise the Client of likely delays. 7.7 Cleanliness The Client is responsible for ensuring that all of its nominated road Transportation Vehicles comply with the Viterra Road Vehicle Hygiene Requirements and arrive at a Port Terminal Facility in a clean, empty and well maintained state free from any contaminants or residue. Viterra has no obligation to inspect any Transportation Vehicle for cleanliness. However, if Viterra does inspect a Transportation Vehicle, then Viterra (acting reasonably) is entitled to reject the Transportation Vehicle as unfit for the transportation of Bulk Wheat and to refuse to load or unload the Transportation Vehicle /2017 Port Terminal Services Agreement for Standard Port Terminal Services 16

22 (e) Viterra is not liable for any Loss (including Indirect or Consequential Loss) caused as a result of a rejection of a Transportation Vehicle (whether by Viterra, DA or a marine surveyor). The Client agrees to pay Viterra for any costs incurred by Viterra as a result of the rejection of a Transportation Vehicle by Viterra, DA or a marine surveyor. Transportation Vehicles are not permitted to be cleaned at any Port Terminal Facility without Viterra s prior written consent. If a Transportation Vehicle fails inspection, Viterra may require that a Transportation Vehicle is removed from the Port Terminal Facility or berth and the Client must comply with that requirement. 7.8 Non-shipment If Bulk Wheat is not shipped from a Port Terminal Facility as detailed in an accepted Booking (and this is not due to any fault on the part of Viterra), the Client must pay: all costs incurred by Viterra to reposition Bulk Wheat within the Port Terminal Facility or to remove the Bulk Wheat from the Port Terminal Facility; and all vessel variation, cancellation, lost capacity and shipping re-positioning fees. Viterra will not refund any booking fees paid or payable in respect of the relevant Booking. 7.9 Transfers of title The Client may elect, by prior written (or electronic) notice to Viterra, to effect an In-Store Transfer of all or part of its Outturn Entitlement. (e) (f) Subject to this clause 7.9, the transferee under an In-Store Transfer will be entitled to an Outturn without any further reduction for Shrinkage. The transferor under an In-Store Transfer will remain responsible for payment of all fees and charges in respect of Port Terminal Services provided up until the effective date of transfer. Viterra may require In-Store Transfers to take place at an individual weighnote level, in order to allow calculations of the value of the Bulk Wheat to be ascertained between the transferor and transferee. Viterra may refuse to process an In-Store Transfer if the In-Store Transfer results in the transferor's Outturn Entitlement going into a negative position at any particular Viterra Facility. For the purposes of accepting or rejecting an In-Store Transfer, Viterra is entitled to rely on orders or instructions: issued by from the Client's domain address and purporting to have been sent by an authorised representative of the Client (or such authorised representatives as the Client may from time to time advise Viterra in writing); or executed via the ezigrain website as accessed through entry of the Client's security setting. (g) If Viterra has acted in accordance with this clause 7.9, the Client releases and holds Viterra harmless against any claim that a communication was not issued /2017 Port Terminal Services Agreement for Standard Port Terminal Services 17

23 7.10 Security Interests by the Client either at all or without authority and indemnifies Viterra against any Losses arising from such claims. If Viterra receives notice from a person claiming to hold a Security Interest over the Client's Bulk Wheat, then provided that the person provides reasonable evidence to substantiate the existence of that Security Interest, Viterra is not required to Outturn that Bulk Wheat until: the person holding the Security Interest has consented to that Outturn; or Viterra receives a court order requiring it to Outturn that affected Bulk Wheat. Viterra reserves the right to charge the Client all reasonable costs that Viterra incurs associated with tracking and maintaining records related to Security Interests held (or claimed) over Bulk Wheat. The Client will indemnify Viterra against all Losses (including without limitation legal costs) Viterra incurs or sustains as a result of a claim made against Viterra by any person holding a Security Interest over Bulk Wheat held by Viterra on behalf of the Client relating to that Bulk Wheat Non-grain commodities The Client acknowledges and accepts that Viterra may load non-grain commodities at its Port Terminals using the same ship loading facilities as it uses to provide Wheat Ship Loading Services for Bulk Wheat. Viterra will use reasonable endeavours to ensure that contamination of Bulk Wheat does not occur Reconciliation and adjustment This clause 7.12 applies if, after the Outturn of all Bulk Wheat of a Service Year from all Viterra Facilities, there is a difference between the Client's Outturn Entitlement and the tonnage actually Outturned to the Client. If the actual tonnage Outturned to the Client exceeds the Client s Outturn Entitlement, the Client must pay to Viterra the Excess Outturn Entitlement Amount within 15 days of receiving an invoice for that amount from Viterra. If the actual tonnage Outturned to the Client is less than the Client s Outturn Entitlement, Viterra may, at its discretion, either: replace the physical Bulk Wheat shortfall in the Client s Outturn Entitlement; or pay to the Client the Shortfall Outturn Entitlement Amount. 8 Charges and payment 8.1 Charges The charges and fees payable for the Port Terminal Services provided by Viterra under this Agreement are as set out in the Reference Prices (Charges) /2017 Port Terminal Services Agreement for Standard Port Terminal Services 18

24 The Client must pay all Charges to Viterra at the times specified in the Port Loading Protocols, the Reference Prices and otherwise in accordance with this Agreement. The Client must pay all other amounts due and payable under this Agreement. Notwithstanding anything to the contrary contained in the Reference Prices, Viterra may vary the Reference Prices (including the Charges set out in the Reference Prices) from time to time, provided that: any variation to the Reference Prices is published at least 20 Business Days prior to the date on which it is to become effective, in the same locations as Viterra ordinarily publishes the Reference Prices; and Viterra may not vary any Charges that have already been incurred and paid by the Client. 8.2 No obligation to extend credit Without limiting clause 8.8, if, in the provision of Port Terminal Services, Viterra considers that it will be exposed to a risk that the Client does not pay for any of those services when due and payable (Credit Risk), Viterra is not obliged to provide those services unless and until Viterra, acting reasonably, is satisfied either by obtaining Credit Support or by independent credit checks or otherwise that the Client is creditworthy in respect of the Credit Risk. 8.3 Set-off The Client is not entitled to withhold payment of any disputed amount the subject of an invoice issued by Viterra or a Viterra Group Company, or to set off against the amount of an invoice any other claim that it has against Viterra or a Viterra Group Company. Viterra may in its discretion deduct from, set-off against and/or otherwise reduce or deem satisfied any obligation Viterra or a Viterra Group Company may have to the Client to the extent of any obligation that the Client may have to Viterra or a Viterra Group Company (whether present or future, certain or contingent, ascertained or sounding only in damages) on any account whatsoever. 8.4 Transfer of liability 8.5 GST If the Client purchases Bulk Wheat which is already warehoused or is or has been stored, handled or treated by Viterra, and there are unbilled and/or unpaid fees and charges in respect of the Bulk Wheat for any period or for anything done prior to the purchase, then the Client is liable for these fees and charges and must pay them to Viterra, unless otherwise agreed with Viterra. In this clause 8.5: a term which has a defined meaning in the GST Act has the same meaning when used in this clause; and each periodic or progressive component of a supply to which section 156-5(1) of the GST Act applies will be treated as though it is a separate supply. All fees and charges in the Agreement unless otherwise stated are expressed exclusive of GST. If GST is liable to be remitted by Viterra in respect of any taxable supply /2017 Port Terminal Services Agreement for Standard Port Terminal Services 19