Terms & Conditions of Sale

Ridley Corporation Limited – Standard Terms & Conditions of Sale

1. General:

a.) Unless otherwise agreed in writing between you and Ridley, this document, together with any purchase documents referred to in this document, and your applicable Commercial Credit Account Application (CCAA) (collectively, the Agreement), constitute all agreed terms and conditions between you and Ridley on which Ridley will supply you with the goods and services specified in such documents (Goods).

b.) Other than the terms and conditions contained in any CCAA, the Agreement excludes and supersedes all prior discussions, documents, representations and arrangements and any other oral or written terms and conditions. Ridley is not bound by any of your terms of order or purchase, or any other conditions outside of the Agreement, and if there is any inconsistency between the terms of this document and the CCAA, the terms of this document will prevail.

c.) In the Agreement, unless the contrary intention appears:

Business Day means Monday to Friday excluding public holidays in Melbourne, Victoria, Australia;

Loss means loss, damage, expenses, liabilities and costs;

Order means any request for Goods;

Ridley, we or us means the member of the Ridley Group indicated on our acceptance of your Order;

Ridley Group means Ridley Corporation Limited (ABN 33 006 708 765) and each of its related bodies corporate (as defined in s50 of the Corporations Act 2001 (Cth)); and

You or your means the person purchasing the Goods specified in the Order, or as otherwise agreed in writing by the parties.

 

2. Orders: Ridley may accept or reject any Order in its absolute discretion. Once an Order is accepted, it may only be cancelled or amended with Ridley’s consent.

 

3. Price: Unless otherwise agreed between you and Ridley in writing:

a.) prices for Goods are those determined by, and available on request from, Ridley at the time the Order is placed.

b.) all prices are exclusive of GST and any other taxes and exclusive of delivery. ,

c.) Ridley may review and vary the prices for Goods between Orders in its absolute discretion.

 

4. Payment: Unless otherwise specified in writing by Ridley in the CCAA (where applicable) or otherwise, Ridley may issue an invoice to you for the Goods at any time after receipt of your Order, and payment for Goods is due within 28 days of the date of the relevant invoice. Time is of the essence in respect of your obligations under this clause 4. Where any payment is not made by the due date, all unpaid invoices are deemed immediately due and payable, and:

a.) you agree to do the following:

i.) pay Ridley interest at a rate equal to the fixed penalty interest rate set out in section 2 of the Penalty Interest Rates Act 1983 (Vic) plus 2% per annum on all monies due, calculated on a daily basis and compounded monthly from the date of default until the date payment is made (both dates inclusive); and  

ii.) indemnify Ridley for all Losses (including legal costs on an indemnity basis) incurred by Ridley as a result of your breach of this clause 4, or upon the occurrence of any default event under the CCAA (as applicable); and

b.) Ridley may set off any amount owed by you to Ridley and/or its related bodies corporate (as applicable) under the Agreement, including but not limited to any interest payable under clause 4a, against any liability that Ridley (and/or its related bodies corporate) may owe to you under the Agreement.

 

5. Delivery: Unless otherwise stated, the price of the Goods excludes any delivery costs. Where Ridley arranges delivery, any such delivery costs are payable by you. yYou agree that Ridley is not liable to you for any Loss with respect to any delayed delivery, except to the extent such Loss is caused directly by Ridley.

 

6. Safety and access: Where Ridley arranges delivery, you must provide Ridley, its employees, agents and contractors full and safe access to the delivery destination, and you agree to indemnify Ridley (and its employees, agents and contractors) against all Losses and claims (including in relation to property damage and personal injury) to the extent such Loss or claim arises as a result of any failure by you to provide such full and safe access. You agree to provide adequate personnel and/or material handling equipment for the loading and unloading of Goods at the delivery destination. Where Ridley agrees to have Goods collected from your premises, you must ensure that the Goods are easily accessible and prepared for loading at the time Ridley or its nominee arrives to collect them.

 

7. Returns, Recalls and Claims:

a.) If you do not advise Ridley in writing of any alleged deficiency in the amount of, damage to, or defect in, any Goods or failure of the Goods to comply with the Agreement (Claim):

i.) for a Claim in respect of an alleged deficiency in the amount of Goods, within 7 days of the Delivery Time (as defined in clause 8);

ii.) for all other Claims, within 14 days of the Delivery Time; and

iii.) if the Claim was not reasonably identifiable at the Delivery Time, within 14 days of the earliest time that you could reasonably have become aware of the Claim, but in any event no later than 30 days following the Delivery Time, then, subject to clause 13, you are deemed to have accepted the Goods and agree that Ridley is released by you from any claim, action, or liability in respect of any such Claim.

b.) If you advise Ridley in writing of a Claim within the applicable time period stated above, Ridley may, in its absolute discretion, provide replacement Goods provided that the Goods to which the Claim relates are, as requested by Ridley, first returned to Ridley (at your cost)within 14 days of you notifying Ridley of the Claim, and the Goods are returned in the same condition and packaging (if practicable) as they were delivered in and Ridley is given full opportunity to investigate the matter giving rise to the Claim. You agree that from the Delivery Time of replacement Goods that do comply with this Agreement, Ridley is released by you from any claim, action, or liability in respect of the Claim.

c.) In the event of a product recall over Goods that you have acquired from Ridley, you agree to provide such assistance to Ridley as may be reasonably required in respect of that recall.

 

8. Risk: Risk in the Goods passes to you at the time the Goods leave Ridley’s premises (Delivery Time). You must keep the Goods insured on usual terms against all risks usually insured against for goods of that kind (at your own cost) from the Delivery Time until the time the legal and beneficial title in the Goods passes to you in accordance with clause 9 Until legal and beneficial title of the Goods has passed to you, you hold the proceeds of that insurance on trust for Ridley up to the amount you owe Ridley in respect of those Goods, and must pay that amount to Ridley immediately following receipt by you of the same.

 

9. Title and the PPSA:

 

a.) Legal and beneficial title to the Goods will not pass to you until the time that you have paid to Ridley the price for the Goods and any other monies due and payable to Ridley (including any accrued interest and GST) in accordance with the Agreement.

b.) Until title in the Goods passes to you in accordance with clause 9a, you are in possession and control of the Goods in a fiduciary capacity and must not permit any encumbrance or security interest to be created over the Goods whether by statute or otherwise. You must keep the Goods in your possession and control, in good repair and condition, and stored properly (in a safe, secure and dry manner) separate from any products of any other person and marked so that the Goods are clearly and easily identifiable as Ridley’s property, and can be identified as relating to a particular invoice or delivery. You must, upon request, inform Ridley of the location of, and provide Ridley with access to, the Goods (including to remove the Goods). If Goods are lost or damaged after the Delivery Time but prior to title in the Goods transferring, you agree to indemnify Ridley for such loss or damage.

c.) If despite your obligations under the Agreement, you receive any proceeds from selling or otherwise any dealing with the Goods prior to the passing of title of any such Goods to you in accordance with clause 9a, those proceeds must be held in trust for Ridley in a separate account until your liability to Ridley in respect of the Goods is discharged. You must pay such proceeds to Ridley on demand.

d.) Ridley may retake possession of the Goods and keep or resell any of the Goods so repossessed to recover any amounts owing to Ridley by you. You agree to provide Ridley (and any person authorised by Ridley) access to all premises where Goods supplied to you by Ridley are stored, for the purpose of Ridley retaking possession of the Goods.

e.) If you process or use the Goods and the Goods are no longer separately identifiable, you and Ridley will be joint owners of the new product in proportion to the value of each party’s contributions.

f.) The parties acknowledge that a security interest is created by the Agreement and as such, the Personal Property Securities Act 2009 (Cth) (PPSA) applies.

g.) In consideration for Ridley supplying the Goods to you under the Agreement, you:

i.) agree to treat the security interest created under the Agreement as a continuing and subsisting security interest in the relevant Goods with priority over any registered or unregistered general (or other) security and any unsecured creditor (even if the Goods become fixtures before paid for in full);

ii.) grant to Ridley a purchase money security interest (PMSI) over the Goods and the proceeds of sale of the Goods;

iii.) agree that the PMSI granted herein will continue to apply to any Goods coming into existence or proceeds of sale of Goods;

iv.) agree that the PMSI has attached to all Goods now or in the future supplied to you by Ridley; and

v.) agree, until title in the Goods pass to you, to keep all Goods free and ensure all Goods are kept free of any charge, lien or security interest except as created under the Agreement, and not otherwise deal with Goods in a way that will or may prejudice any rights of Ridley under the Agreement or the PPSA.

h.) Ridley reserves the right to register a financing statement under the PPSA in respect of the Goods and you consent to Ridley doing so, and agree not to make any amendment demand. You agree to indemnify, and on demand will immediately reimburse, Ridley for its costs, charges and expenses (including any registration fees) incurred in connection with anything Ridley does to register, perfect, preserve, enforce or protect or otherwise deal with the Security Interest.

i.) You further agree (to the extent permitted by law) that you waive your rights under such sections of the PPSA as are able to be waived or excluded by agreement in addition to any other provision of the PPSA notified by Ridley to you from time to time and you waive your right to receive a copy of any financing statement, financing change statement or verification statement that is or may be registered, issued or received at any time.

 

10. Repossession: You agree to provide Ridley and any person authorised by Ridley access to all premises where Goods supplied to you by Ridley are stored for the purpose of Ridley retaking possession of the Goods. You agree to fully indemnify Ridley for all loss, damages, costs (including legal fees) and claims (including third party claims) suffered or incurred by Ridley (whether direct or indirect) as a result of Ridley retaking possession of the Goods supplied to you by Ridley or otherwise exercising its rights under this clause. You must make payment under this indemnity immediately on demand from Ridley.

 

11. Warranties:

a.) Ridley warrants that Goods as supplied are free from any manufacturing defect. This warranty does not apply if:

i.) the defect becomes apparent after, or you fail to notify Ridley of your Claim and return the Goods to Ridley before, the expiry of the applicable periods under clause 7;

ii.) the Goods are not stored or handled in accordance with all instructions issued by Ridley or usual industry practice;

iii.) the Goods have been subject to any alteration by any person other than a person authorised in writing by Ridley; or

iv.) the defect is caused by any raw materials provided by you to Ridley for manufacture of the Goods.

b.) Subject to clause 13, all other terms, conditions, warranties and representations of any type in relation to the Goods (whether express or implied, and including under common law, statute, custom or usage) are excluded to the maximum extent allowed by the law. Subject to applicable law, you agree that the remedy for a breach of any condition or warranty implied by law is, at Ridley’s option, either the repair of the Goods, supply of a replacement, payment of the cost of replacing the Goods or of acquiring equivalent goods, or payment of the cost of having the Goods repaired.

c.) Ridley makes no representation as to the fitness of the Goods supplied by it for any purpose other than a purpose which has been notified by you to Ridley in writing prior to the date of the Agreement and confirmed in writing by Ridley to be applicable.

 

12. Liability: To the extent permitted by law, and subject to clause 13, Ridley will not be liable for:

a.) any consequential or indirect losses suffered by you in relation to the Agreement or your use of the Goods, including any incidental damages, loss of profit, economic loss or damage, loss of reputation, loss of revenue or actual or potential profits, lost opportunity or costs of business interruption;

b.) any personal injury or other Losses arising out of, or incidental to, any use of the Goods;

c.) any Loss arising out of, or in relation to, negligence on the part of Ridley or any of its employees, offices, agents and contractors; or

d.) any Loss suffered by you to the extent that you have failed to take reasonable steps to mitigate against such Loss.

 

13. Australian Consumer Law:

a.) This clause 13 applies to the Agreement only if you are a consumer for the purposes of the Australian Consumer Law (as contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth)).

b.) No provision of the Agreement will be construed as being contrary to any conditions or warranties required to be implied by law (including the Australian Consumer Law) that cannot be excluded (Non-Excludable Conditions).

c.) To the maximum extent permitted by law, Ridley’s liability for breach of any Non-Excludable Condition is limited, at Ridley’s option, to the replacement or resupply, or payment of the cost of replacement or resupply, of the Goods to which the breach relates.

 

14. Limitation of liability: Subject to clause 13 and excluding your liability to pay the price, and the amounts paid or payable, for the Goods, to the extent permitted by law, the maximum cumulative liability of a party to the other party in respect of all claims and Loss under and in connection with an accepted Order, whether under the law of contract, tort or otherwise, will be limited in aggregate to the amount paid or payable by you for the Goods under the Order, other than in the case of:

a.) Fraud, or any other criminal activity of the other or the other party’s employee’s officers, contractors or agents;

b.) Death of, or injury to, a person; and

c.) Infringement of intellectual property rights, confidentiality or privacy.

 

15. Termination:

a.) Either party may, by written notice to the other party, immediately terminate the Agreement if:

i.) the other party commits a material breach the Agreement and where:

1. such breach is capable of remedy, that breach has not been rectified by the defaulting party within 10 Business Days of receipt of written notice of that breach; or
2. such breach is not capable of remedy;

ii.) the other party dies, becomes incapacitated, or ceases, threatens or indicates that it is about to cease carrying on its business;

iii.) anything happens that reasonably indicates that there is a significant risk that the other party is, or will become unable to pay its debts as and when they fall due; or

iv.) a step is taken to have a receiver, receiver and manager, provisional liquidator or administrator appointed in respect of the other party or its assets.

b.) If the Agreement is terminated because of a party’s default in accordance with clause 15a, then (subject to clause 4b) all amounts owing to the other party under this Agreement are deemed immediately due and payable.

c.) Clauses 4, 9, 11, 14, 15b, 15c, 17 and 18 survive termination of the Agreement.

 

16. Force Majeure: Neither party is liable for any failure to perform or delay in performing its obligations under the Agreement (other than an obligation to pay money) to the extent that such failure or delay is caused by any cause or circumstance beyond that party’s reasonable control, including but not limited to: any lack of production capacity or raw materials; strikes; lockouts; labour disputes; fires; floods; or public enemy; malicious or accidental damage; delays in transport; breakdowns in machinery; restrictions, prohibitions or changes in law or policy by any government or any semi-governmental authorities; public health emergency, epidemic, pandemic or quarantine (including in relation to COVID-19) or any travel restrictions or bans on travel issued by the World Health Organisation or any government or authority; or embargoes (Force Majeure Event).

 

17. Confidentiality:

a.) In this clause 17, Confidential Information means any information relating to the business, strategies, pricing, products, customers, distributors, suppliers, employees, contracts (including this Agreement) or other affairs of a party, other than information that:

i.) is publicly available other than as a result of a breach of any duty or obligation; or

ii.) was in the possession of the other party lawfully and without breach of any duty or obligation prior to the information being disclosed to that party under or in connection with this Agreement.

b.) Neither party may use the other party’s Confidential Information except for the sole purpose of that party performing its obligations under the Agreement.

c.) Neither party may disclose the other party’s Confidential Information, other than:

i.) to its related bodies corporate and its (and its related bodies corporate’s) directors, officers, employees, advisers and auditors who have a need to know of such Confidential Information for the sole purpose of giving effect to, or enforcing, this Agreement (only to the extent necessary, and subject to those persons agreeing to keep the Confidential Information confidential);

ii.) to the extent the disclosure is required by court order, law or regulation or the rules of an applicable securities exchange, and such disclosure is limited to the extent required; or

iii.) if the disclosure (including its form) is approved by the other party in writing.

 

18. Intellectual Property: You acknowledge and agree that the sale of the Goods under this Agreement does not confer on you any intellectual or industrial property rights of Ridley anywhere in the world, including existing or future rights in copyright, trade marks, service marks, trade names, designs, patents, confidential information, trade secrets, know how, any applications for any of the foregoing and any other form of intellectual property rights as may be recognised by any law), and such intellectual property rights will remain the property of Ridley.

 

19. Dispute Resolution: The parties agree that any dispute arising from this Agreement shall be determined in accordance with this clause 19. Prior to a party commencing any legal proceedings or arbitration in respect of any matter arising under this Agreement, the party must issue a written notice to the other party outlining the circumstances of the dispute. Following issue of a notice by a party, as soon as is reasonably practicable, but in any event no longer than fourteen (14) days from the date of the notice, appropriately authorised representatives of each of the parties must meet to discuss the matters set out in the notice provided under this clause 19. In the event that the parties are unable to resolve the dispute within fourteen (14) days of the discussions between the authorised representatives, either party may commence litigation in respect to the matters in dispute, provided it has given notice to the other party of its intention to do so.

 

20. Miscellaneous:

 

a.) Should the provisions of the unfair contract terms regime under the Competition and Consumer Act 2010 (Cth) and the Australian Securities and Investments Commission Act 2001 (Cth) (UCT Provisions) apply to the agreement between the parties, it is the intention of the parties to abide by the UCT Provisions and if necessary, any wording read down and amended and if unable to be amended, then that wording to be deleted in order to comply.

b.) A party waives a right under the Agreement only if it does so in writing, and a waiver of a breach of any provision of this Agreement does not constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions of this Agreement.

c.) Neither party may, without the prior written consent of the other party (which must not be unreasonably withheld or delayed), assign, transfer or deal with its rights and obligations under the Agreement and any contract made pursuant to it.

d.) The rights and remedies provided in the Agreement will not affect any other rights or remedies available to a party.

e.) The Agreement is governed by and must be interpreted in accordance with the laws of the State of Victoria, and the parties irrevocably submit to the non-exclusive jurisdiction of the courts of Victoria.

f.) The Agreement may only be varied by a document in writing signed by or on behalf of each party.

g.) If any provision of the Agreement is unenforceable, illegal or void, that provision is to be read down so as to be enforceable, valid and legal, or if this is not possible, that provision is to be severed, and the other provisions of the Agreement remain in full force and effect.

h.) Any notice to be given to a party under the Agreement must be in writing and must be sent by post, facsimile or email to the address of that party shown in the quotation, Order or Order acknowledgement. Notice is deemed to have been given at the time it would have been received in the normal course of post if sent by post, or if otherwise given at the time it was actually received.

i.) The parties acknowledge that the provisions of this document may be made subject to other agreements or documents constituting the Agreement by express provision contained in such agreements or documents.

j.) Headings are inserted for convenience only and do not affect the interpretation of the Agreement.

k.) Any leniency or extension of time granted a party to the other party under this Agreement or in any related dealing does not affect that party’s rights in any way, and does not constitute a waiver of those rights or any of these terms of this Agreement.

l.) The parties agree that nothing in the Agreement constitutes or will be deemed to constitute a partnership or agency or other fiduciary relationship between the parties.