1 DEFINITIONS:
1.1 In these terms and conditions of sale:
(a) Goods means any goods supplied by RD to the Customer;
(b) RD means The Riverina Dairy Pty Ltd as trustee for the Riverina Cheese Unit Trust trading as The Riverina Dairy ABN 35 098 357 035;
(c) Customer/You means the individual or entity identified in the Applicant Details of the attached Credit Application, or, if no Credit Application is attached, the individual or entity identified in the RD Purchase Order.
2 ORDERS AND ORDER ACKNOWLEDGEMENTS
2.1 Any information RD provides in respect of the Goods (including price lists) does not constitute an offer to sell but constitutes an invitation to treat only, and is subject to the availability of the Goods, which may change from time to time.
2.2 The Customer’s order or offer to purchase is an offer to purchase Goods at RD’s current price at the date of delivery (plus any delivery charges or other applicable charges payable by the Customer), on these Terms and is deemed accepted by RD unless it notifies the Customer otherwise.
2.3 The Customer’s order or offer to purchase Goods which is accepted by RD and the contract made by that acceptance (Supply Contract) are subject to these terms and conditions of sale. By submitting an order or offer to purchase Goods to RD, you accept RD’s then current terms and conditions of sale at the time the order/offer is made. These terms and conditions of sale take precedence in the event of any inconsistency, or where terms are subsequently incorporated into the agreement between the Customer and RD for the supply of Goods, including but not limited to where an order is placed by a Customer for Goods using their order form.
2.4 RD reserves the right to accept or reject in its absolute discretion any orders it may receive for any reason, including, without limitation, the rejection of the Customer’s Credit Application, the Customer failing to pay for other Goods that it has ordered, the unavailability of goods, an error in the price or the description of goods, or an error in the order placed by the Customer.
2.5 RD may vary these terms and conditions of sale by giving the Customer 7 days’ written notice specifying the variation to the terms and conditions of sale. Such notice may be given by mail, fax or email. All other variations must be by signed written agreement between the parties.
3 PRICE
3.1 RD prices are subject to change without notice. Unless the parties otherwise agree in writing, the price payable for the Goods will be RD’s current price at the date of delivery (plus any delivery charges or other applicable charges payable by the Customer) (Purchase Price).
4 GOODS SPECIFICATIONS
4.1 RD may change the specifications or ingredients of any Goods from time to time and RD is not required to notify the Customer of such a change.
5 PAYMENT
5.1 The Customer must pay for the Goods in the manner reasonably specified by RD and on the payment terms RD notifies to the Customer from time to time. RD reserves the right to pass on any costs associated with particular forms of payment (for example merchant fees charged on credit card payments). If payment falls due on a weekend or public holiday, payment is required by the preceding working day.
5.2 If payments are not made on time, RD may, in its absolute discretion:
(a) refuse to supply the Customer with further goods; or
(b) require the Customer to pay for all goods in full prior to the goods being supplied to the Customer.
5.3 Time is of the essence in respect of the Customer’s obligation to make payment for Goods sold by RD to it.
5.4 Any payments the Customer makes to RD will be applied as follows:
(a) first, as reimbursement in accordance with clause 6.2(b) for any collection costs and expenses RD incurs;
(b) second, in payment of any interest charged to the Customer in accordance with clause 6.2(a); and
(c) third, in satisfaction or part satisfaction of the oldest portion of the Customer’s account.
5.5 If an amount is payable by the Customer to RD, RD is entitled to set-off that amount against any amount payable by RD to the Customer.
6 DEFAULT
6.1 The Customer will be in default if it breaches these terms and conditions or any Supply Contract including if:
(a) payment in full for the Goods is not made by the due date;
(b) the Customer disposes of or gives any security interest over its business or a material part of its business;
(c) the Customer enters into a factoring arrangement without the prior written consent of RD;
(d) the Customer is in breach of clause 16.2 or 16.3;
(e) the Customer attempts to assign or transfer the benefit of these terms and conditions or a Supply Contract without first obtaining RD’s consent in writing;
(f) if the Customer is a corporation, and it suffers a change in majority control – whether by a change in voting shareholders or by a change in directors and does not advise RD of the change in writing within 7 days;
(g) if the Customer is an individual, and he/she is declared or commits an act of bankruptcy, enters into an arrangement or composition with his/her creditors, signs an authority under Part X of the Bankruptcy Act or any execution is levied against his/her property; or
(h) if the Customer is a corporation, and a controller, administrator, receiver, receiver and manager, provisional liquidator or liquidator is appointed to it, it has winding up proceedings initiated against it, has any execution levied against its property or ceases or threatens to cease carrying on business.
6.2 If the Customer is in default within the meaning of clause 6.1, RD will be entitled to:
(a) charge interest on all amounts the Customer owes RD at the rate of 12% per annum, calculated daily, compounded monthly and payable by the Customer for each day immediately following the due date for payment until payment is made in full;
(b) be reimbursed for, and recover from the Customer, all costs and expenses incurred by RD in seeking to collect amounts owed by the Customer, including, without limitation, the costs of any collection agents RD engages, and the legal costs (on a solicitor and client basis) RD pays;
(c) immediate payment for all Goods purchased by the Customer from RD, the payment of which would otherwise not have been then due and payable;
(d) terminate or suspend delivery of any order which is the subject of any other sale between the Customer and RD; and
(e) terminate any Supply Contract and cease providing the Customer with Goods under these terms and conditions. RD will not be obliged to notify the Customer before exercising its rights as outlined above and these rights will be in addition to any other rights that RD may have at law or in equity.
7 DELIVERY
7.1 The Customer must notify RD in writing (including sufficient particulars) within 48 hours of delivery if the Customer claims that the Goods were defective, short delivered or otherwise not the Goods specified in the Supply Contract. If the Customer fails to notify RD as set out in this clause, then to the fullest extent permitted by law, the Goods must be treated as having been accepted by the Customer, and the Customer must pay for the Goods and, to the fullest extent permitted by law, RD will be discharged from any liability in respect of the Goods being wrong or defective or short delivered.
7.2 Every effort will be made to deliver the goods within the time or times agreed upon, but any time quoted for delivery is an estimate only and failure to deliver by that time will not constitute a breach of contract. RD will not be liable for any loss or damage howsoever arising as a result or consequence of any delay in delivery or any failure to deliver. The Customer will not be relieved of any obligation to accept or pay for Goods by reason of any delay in delivery.
7.3 Delivery will occur when the Goods are first left with the Customer or at the Customer’s premises or at any other place nominated by the Customer and agreed by RD. RD will not be required to obtain the Customer’s signature as proof of delivery. All the risk in the Goods passes to the Customer upon delivery.
8 PALLETS
8.1 The Customer will accept all pallets or pallecons to be de-hired onto their account with an agreed Pallet Supplier/Agent.
9 TITLE TO GOODS
9.1 clause 7.3. Risk in the Goods passes to the Customer at the time the Goods are delivered to the Customer in accordance with clause 7.3.
9.2 The Customer must ensure the Goods are properly stored and protected and fully insured for an amount not less than the Purchase Price.
9.3 Notwithstanding anything to the contrary in these terms and conditions, property in the Goods will remain with RD and title will not pass to the Customer until RD has received payment in full for the Goods and for all sums owing on all of the Customer’s other accounts with RD or under any contract made with RD.
9.4 If payment is made by way of cheque or other negotiable instrument, title in the Goods will not pass to the Customer until the cheque or other negotiable instrument has been honoured or cleared by RD’s bankers.
9.5 From the time that the Goods are delivered to the Customer by RD until the time that title passes to the Customer in accordance with clause 9.3, the Customer takes custody of the Goods and retains them as the fiduciary agent and bailee of RD.
9.6 The parties acknowledge that:
(a) RD’s rights in the Goods established under this clause 9 are a ‘purchase money security interest’ (“PMSI”);
and
(b) RD will have a PMSI in proceeds of those Goods.
9.7 If the Customer fails to pay RD for the Goods by the due date for payment in accordance with these terms and conditions, the Customer (without prejudice to RD’s full rights and remedies to retake possession of the Goods from the Customer and recover the debt in full) hereby agrees to deliver up to RD upon demand, and consents to RD entering the premises in which the Goods are stored and retaking possession of, those Goods for which the Customer has not paid. Thereupon, RD will be entitled to sell the Goods to a third party.
10 RECALLS
10.1 In the event of a product recall over Goods the Customer has acquired from RD, the Customer shall give RD such assistance as is reasonably required in relation to that recall.
11 CERTIFICATES
11.1 In the absence of manifest error, RD’s written records in relation to a delivery of Goods will be conclusive evidence of the type and quantity of Goods delivered and of the date and time of delivery.
11.2 In the absence of manifest error, certification from RD’s authorised representative will be conclusive evidence of the amount owed for the Goods.
12 EXCLUSION OF WARRANTIES AND LIABILITY
12.1 Except as expressly provided in clause 12.6, all conditions and warranties, whether express or implied by law or otherwise, in respect of:
(a) the state, quality or condition of Goods; or
(b) the advice, recommendations, information or services regarding the Goods, their use and/or their application;
which may apart from this clause be binding on RD are excluded to the fullest extent permitted by law.
12.2 The only conditions and warranties which are binding on RD in respect of:
(a) the state, quality or condition of the Goods supplied by RD to the Customer; or
(b) advice, recommendations, information or services supplied by RD, its employees, servants or agents to the Customer regarding the Goods, their use and/or their application;
are those conditions and warranties which cannot lawfully be excluded.
12.3 The Customer agrees that RD’s sole liability for any breach of any of these Terms and Conditions of sale, or of any actual or implied condition or warranty that cannot lawfully be excluded will be limited to, at its election:
(a) replacement of the Goods or the supply of equivalent goods; or
(b) the payment of the cost of replacing the Goods or of purchasing or acquiring equivalent goods.
12.4 The Customer acknowledges that it does not rely, and it is unreasonable for it to rely, on RD’s skills or judgment as to whether the Goods supplied are reasonably fit for any purpose for which the Customer is acquiring them.
12.5 Any description of the Goods contained in the order or invoice is given by way of identification only and the use of such description will not constitute a contract of sale by description.
12.6 RD warrants that it will provide the Customer with good title to the Goods and that the Goods will be of merchantable quality.
12.7 Except to the extent provided in clauses 12.1 and 12.6 such liability as may not otherwise be lawfully excluded or limited, then RD has no liability (including liability in contract, negligence or under statute) to any person for:
(a) any loss or damage consequential or otherwise suffered or incurred by that person in relation to the Goods or advice, recommendations, information or services in relation to the Goods; and
(b) in particular, but without limiting clause 12.7(a), any loss or damage, consequential or otherwise, suffered or incurred by that person caused by or resulting directly or indirectly from any failure, defect or deficiency of any kind of or in the Goods or advice, recommendations, information or services in relation to the Goods.
13 INDEMNITY
13.1 To the fullest extent permitted by law, the Customer indemnifies RD, and agrees to keep RD indemnified, against:
(a) all losses RD incurs;
(b) all liabilities RD incurs; and
(c) all costs actually payable by RD to its own legal representatives (whether or not under a costs agreement) and other expenses RD incurs in connection with a demand, action, arbitration or other proceeding (including mediation, compromise, out of court settlement or appeal), arising directly or indirectly as a result of or in connection with the supply of Goods by RD to the Customer:
except to the extent that RD incurs such losses, liabilities and/or costs as a result of it breaching the warranties set out in clause 12.6 or a condition or warranty which cannot lawfully be excluded under clause 12.1; or
unless RD incurs such losses, liabilities and/or or costs due to wilful misconduct on the part of RD or any of its employees or agents acting within the scope of their employment.
13.2 The Customer must pay to RD all liabilities, costs and other expenses referred to in clause 13.1, whether or not RD has paid or satisfied them.
14 GST
14.1 Save for defined terms in this Agreement, capitalised expressions set out in this clause bear the same meaning as those expressions in the A New Tax System (Goods and Services Tax) Act 1999.
14.2 Except where express provision is made to the contrary, and subject to this clause, any amount that may be payable by the Customer to RD under these terms and conditions is exclusive of any GST. If RD makes a Taxable Supply to the Customer under these terms and conditions for a Consideration which represents its Value, then the Customer must also pay, at the same time and in the same manner as the Value is otherwise payable, the amount of any GST payable in respect of the Taxable Supply. RD’s right to payment under this clause is subject to a valid Tax Invoice being delivered to the Customer.
15 FORCE MAJEURE
15.1 If a party is prevented from or delayed in complying with an obligation (other than to pay money) under these terms and conditions or a Supply Contract by an event beyond its reasonable control, performance by it of that obligation is suspended during the time, but only to the extent that, compliance is prevented or delayed.
16 SECURITY INTEREST
16.1 The parties acknowledge that:
(a) these terms and conditions constitute a security agreement under the Personal Property Securities Act 2009 (“PPSA”); and
(b) RD has a security interest in the Goods (including any Goods to be supplied in the future) and any proceeds.
16.2 The Customer agrees to do anything required by RD to enable RD to register the security interest and to maintain the registration including by paying all costs, expenses and other charges incurred by RD in preparing, lodging or registering any financing statement or financing change statement in relation to any such security interest, maintaining those registrations, and enforcing any security interests.
16.3 The Customer shall not grant a security interest over the Goods in any way, nor grant or give any interest in the Goods while they remain the property of RD, nor allow any third party to acquire a security interest in the Goods.
16.4 If the Customer fails to comply with this clause 16 they are in default and clause 6 applies.
16.5 In the event of default, the Customer authorises RD and any person authorised by RD to enter premises where the Goods may be located to take possession of the Goods. RD may retain, sell or otherwise dispose of those Goods.
16.6 The following provisions of the PPSA will not apply to the enforcement of this these terms:
(a) section 95 (notice of removal of accession), to the extent that it requires the RD to give a notice to the Customer;
(b) subsection 121(4) (enforcement of liquid assets – notice to grantor);
(c) section 130 (notice of disposal), to the extent that it requires the RD to give the Customer a notice;
(d) paragraph 132(3)(d) (contents of statement of account after disposal);
(e) subsection 132(4) (statement of account if no disposal);
(f) section 135 (notice of retention);
(g) section 142 (redemption of collateral); and
(h) section 143 (reinstatement of security agreement).
16.7 RD does not need to give the Customer any notice under the PPSA (including a notice of a verification statement) unless the notice is required by the PPSA and that requirement cannot be excluded.
16.8 In the event that RD commences to take action against the Customer pursuant to these terms and conditions, such action whether by way of issue of a letter of demand, a court claim or other process, the Customer hereby expressly consents and agrees to, where applicable, entering into a security agreement with RD in accordance with the PPSA and on such terms as required by RD, so that RD may register a caveatable or other form of security interest against any/all property in which the Customer has an interest. And the Customer further consents to such caveatable and other security interests remaining on the property until such time as the full amount owing to RD has been paid by the Customer. All costs associated with registering or removing any caveatable or other security interest are the responsibility of and shall be recoverable against the Customer.
17 CREDIT INFORMATION
17.1 The Customer grants RD authority to obtain credit information from a credit reporting body using personal information provided by the Customer in the Customer’s Credit Application, and the Customer authorises RD to give permitted information to a credit reporting body. This information includes but is not limited to information relating to payments which have become overdue.
17.2 RD will treat credit information in accordance with RD’s Credit Information Policy (a copy of which can be obtained from the website www.riverinadairy.com.au or by calling +61 2 6023 5325).
18 PRIVACY
18.1 RD will treat personal information in accordance with RD’s privacy policy (a copy of which can be obtained from the website at www.riverinadairy.com.au or by calling +61 2 6023 5325).
19 MISCELLANEOUS
19.1 If the Customer is acting as the trustee of any trust (whether disclosed or not), then the Customer declares that it is entering any Supply Contract both in its own capacity and as trustee of the trust with the ability to bind, and the intention of binding, both.
19.2 If anything in these terms and conditions or a Supply Contract is unenforceable, illegal or void then it is severed and the rest of these terms and conditions or the Supply Contract remains in force.
19.3 These terms and conditions:
(a) Together with the Customer’s Credit Application represent the entire agreement and understanding between the parties on everything connected with its subject matter except to the extent that any terms are imposed by law and cannot be excluded; and
(b) supersede any prior agreement or understanding on anything connected with that subject matter.
19.4 The Customer may not assign or otherwise deal with a Supply Contract without RD’s consent which it may give or withhold at its absolute discretion. RD may assign or otherwise deal with a Supply Contract without the Customer’s consent.
19.5 A failure or delay in exercise, or partial exercise, of a power, right, authority, discretion or remedy arising from a breach of, or default under these terms and conditions does not result in a waiver of that right, power, authority, discretion or remedy.
19.6 Any failure, delay, or omission by either party to insist upon strict performance of the terms and conditions shall not constitute a waiver or variation of such terms and conditions or a waiver of the default or remedy thereof.
19.7 These terms and conditions and each Supply Contract will be read and construed in accordance with the laws of the State of New South Wales and both parties agree to submit to the jurisdiction of the courts and tribunals of that State and of the Commonwealth.
19.8 All of the rights and obligations of each party under these terms and conditions which are expressed as surviving termination and/or expiry, or which by their nature or context must survive termination and/or expiry, will survive the termination and/or expiry of these terms and conditions.