How do you know if you are in a business relationship governed by the Horticulture Code of Conduct?

The Horticulture Code requires that the parties have concluded a Horticulture Produce Agreement. It provides that:
A trader and a grower may only trade in horticulture produce with each other if they have entered into an agreement that complies with Part 3 of the Horticulture Code of Conduct.”

A horticulture produce agreement must:
(a)  be in writing;
(b)  be formally accepted by signature or written notice of offer and acceptance;
(c)  specify the matters set out in clauses 16, 17 and 18 of the Code.

Clause 16 requires that a horticulture produce agreement must specify:

(a)  whether the trader is trading as an agent or a merchant under the agreement; and
(b)  any requirements the trader has in respect ofdelivery of horticulture produce to the trader by the grower; and
(c)  any circumstances, for the purposes of paragraph 22(2)(b), in which the trader may reject horticulture produce delivered by the grower; and
(d)  the period, for the purposes of subclause 22(4), within which the trader must give the grower reasons for a rejection of horticulture produce delivered by the grower; and
(e)  if the trader has insurance for horticulture produce covered by the agreement:
     (i)  the extent to which the produce is covered by the agreement; and
     (ii)  the maximum amount of insurance cover provided by the trader’s insurance policy in respect of claims that may be made in relation to the produce; and
(f)  the process for varying the agreement; and
(g)  if the agreement is only to operate for a limited time—the term of the agreement; and
(h)  any quality and quantity requirements relating to horticulture produce covered by the agreement; and
(i)  the FreshSpecs Produce Specifications, or other specifications, that will be used to determine the quality of the produce; and
(j)  how the trader deals with horticulture produce, provided by the grower under the agreement, that does not meet the quality or quantity requirements (if any) specified in the agreement; and
(k)  if the trader intends to pool the horticulture produce with other produce:
     (i)  the quality requirements relating to the produce to be pooled; and
     (ii)  the specifications that will be used to determine the quality of the produce to be pooled; and
(l)  the payment period, for the purposes of subclause 35(2), for the delivery of horticulture produce under the agreement; and
(m)  the reporting period for the agreement; and
(n)  the statement period for the agreement; and
(o)  the contact details of the person that the grower should contact in the event of a dispute with the trader under the agreement or this code; and
(p)  the contact details of the person that the trader should contact in the event of a dispute with the grower under the agreement or this code; and
(q)  the process for terminating the agreement.

Clause 17 If a trader is trading under a horticulture produce agreement as an agent, the agreement must also specify:

(a)  the period within which the agent will pay to the grower the proceeds of a sale of the grower’s horticulture produce by the agent for the purposes of subclause 26(2); and
(b)  whether payment by the grower of any commissions, fees and extra costs is contingent on the sale of the horticulture produce or any other event or kind of event; and
(c)  if the agreement permits the charging of commission and agent’s fees:
     (i)  whether the commission or the fees are charged on a percentage basis, fixed basis or any other basis; and
     (ii) the amounts or rates of the commissions, fees and extra costs; and
(d)  whether the agent will pursue payment for bad debts of the grower arising under the agreement; and
(e)  whether the grower will have a role in pursuing payment for bad debts mentioned in paragraph (d) and, if so, the terms applying to the pursuing of the payment.

Clause 18 If a trader is trading with a grower under a horticulture produce agreement as a merchant, then the horticulture produce agreement must also specify:

(a)  if the merchant and the grower agree that the price of horticulture produce will be determined by a method or formula—the method or formula to be used to determine the price; and
(b)  if the merchant and the grower agree that the price of horticulture produce is to be determined before or upon delivery of the produce to the merchant—whether the price will be determined before or upon the delivery of the produce; and
(c)  if the merchant is to perform a service under the agreement:
     (i)  the details of the service; and
     (ii)  the fees to be paid for the provision of the service.