RYCO Terms of Sale (“RTS”)
- Unless otherwise expressly agreed in writing, the products and services supplied by RYCO (“RPS”) to a person who has submitted an order to which these RTS apply (“purchaser”) are supplied upon the terms set out in these RTS to the exclusion of any (written or verbal) terms and conditions of the purchaser and no agent or representative of RYCO has any authority to vary or omit any of these RTS in relation to a specific purchaser.
- Before purchasing any RPS the purchaser:
a) agrees that they have read and understood these RTS, the safety information, notes, warnings and instructions contained in RYCO’s current catalogues, product technical manuals, manuals and published technical data relating to the RPS and which are provided to the purchaser or otherwise available on the RYCO website www.ryco.com.au (“Documents”); and
b) holds themselves as a responsible, competent and appropriately skilled user or reseller of the RPS and that they comprehend and understand the dangers of incorrect use, installation or assembly of such RPS.
- Each request for RPS (whether in writing, online or verbally) which sets out the quantity, price and a description of the RPS required, including a date and address for delivery (or, in the case of services, date for performance) placed by the purchaser (“Order”) amounts to an offer by that purchaser to acquire from RYCO the RPS described in the Order upon these RTS and the Order. RYCO may, in its discretion, accept an offer in an Order by doing one of the following within 30 days after the date that RYCO receives the Order:
a) deliver or perform the RPS to the address for delivery set out in the Order; or
b) provide express written acceptance of the offer set out in the Order to the purchaser giving an estimated date for delivery.
Failure of RYCO to accept the order in accordance with this clause 3 within 30 days after the date that RYCO receives the Order will be deemed to be a rejection of the Order by RYCO.
- Each Order that is accepted by RYCO under clause 3 constitutes a separate contract between RYCO and the purchaser which the parties agree is governed by these RTS and the Order and these RTS shall prevail over any purchaser terms and conditions, except to the extent specifically agreed by RYCO in writing.
- RYCO may, in its discretion, refuse to sell or supply RPS to the purchaser, and may, but is not obliged to, give written notice to that effect. RYCO is not required to give reasons for its refusal.
- Any Order, including any order for special production runs under clause 18, that has been accepted by RYCO may not be reduced or cancelled by the purchaser after acceptance without the agreement of RYCO in writing.
- All RPS supplied by RYCO must be inspected and examined by the purchaser at the time of delivery and any deficiency in quantity or quality of or damage to RPS delivered (“Defect”) must be notified to RYCO within 7 days of the date of delivery to the purchaser. If the purchaser does not provide such notification to RYCO then, subject to and without limiting any rights which the purchaser may have under the Australian Consumer Law, this shall be deemed to be an acknowledgment by the purchaser that the:
a) quantities as set out by the invoice are correct;
b) RPS are of an acceptable quality; and
c) the RPS are not damaged and will not be returned.
- The purchaser agrees that it will not provide, other than in respect of any warranties or guarantees which cannot be excluded by law, make or purport to make on behalf of RYCO to any customer of the purchaser any undertaking, assertion, statement, warranty, admission or other representation in respect of the RPS.
- Subject to and without limiting any rights which the purchaser may have under the Australian Consumer Law, the purchaser acknowledges and agrees that:
a) the purchaser or the user of the RPS must use the RPS in accordance with the instructions or specifications set out in the Documents;
b) use of the RPS that is contrary to the instructions contained in RYCO’s Documents may result in an unsatisfactory, defective or even dangerous product;
c) defects in the RPS may arise due to normal deterioration or more accelerated deterioration:
(i) if stored or operated in adverse physical, chemical, electrochemical or environmental conditions;
(ii) if the RPS are insufficiently maintained or incorrectly repaired;
(iii) if the purchaser fails to follow correct storage, user and operating instructions; or
(iv) the purchaser use of unsuitable materials with the RPS;
d) if the RPS are not assembled in accordance with the assembly operations or instructions specified in RYCO’s Documents the RPS may become defective, dangerous or perform unsatisfactorily;
e) modifications of RPS, other than in accordance with RYCO’s written approval, may result in the RPS becoming defective, dangerous or performing unsatisfactorily;
f) any RPS that are welded (except if the welding is carried out by RYCO, its servants or its agents) by a person who is not suitably qualified including, but not limited to, weldons, salvage, life saver or any other components may result in the RPS becoming defective, dangerous or performing unsatisfactorily and all welding carried out in respect of any RPS be tested and proved fit for the use intended; and
g) if the purchaser wishes to make a claim against RYCO in respect of any RPS, the purchaser must allow RYCO a reasonable opportunity to fully inspect the relevant RPS product the subject of the claim and the circumstances giving rise to the claim.
- If the purchaser is a consumer for the purposes of section 3 of the Australian Consumer Law (“Consumer”) and RYCO supplies goods or services (inducing RPS) which, for the purposes of the Australian Consumer Law, are of a kind ordinarily acquired for personal, domestic or household use or consumption (“PDH Goods or Services”) to the purchaser, RYCO acknowledges that the purchaser may have certain rights under the Australian Consumer Law in respect of the consumer guarantees provided under Division 1 of Part 3-2 of the Australian Consumer Law (“Consumer Guarantees”) as they apply to the PDH Goods or Services supplied by RYCO under these RTS and nothing in these RTS should be interpreted as attempting to exclude, restrict or modify the application of any such rights.
- If the purchaser is a Consumer and any RPS supplied by RYCO to the purchaser are non PDH Goods or Services, RYCO’s liability to the purchaser in connection with any breach of the Consumer Guarantees in respect of those non PDH Goods or Services is limited (at RYCO’s discretion) to:
a) in the case of goods:
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of the goods;
(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(iv) the payment of the cost of having the goods repaired; and
b) in the case of services:
(i) the supplying the services again; or
(ii) the payment of the cost of having the services supplied again.
- If the purchaser makes a claim against RYCO which includes a cause of action other than for a breach of a Consumer Guarantee then, to the extent the claim, or part of the claim, does not relate to a Consumer Guarantee and to the extent permitted by law, RYCO expressly excludes all liability in respect of the goods or services supplied by RYCO to the purchaser.
- In relation to the supply of goods which are non PDH Goods or Services, if RYCO is liable to indemnify the purchaser under section 274 of the Australian Consumer Law, RYCO’s liability to the purchaser is limited to an amount equal to the lower of:
a) the cost of replacing the goods;
b) the cost of obtaining equivalent goods; or
c) the cost of having the goods repaired.
- RYCO may provide, in its Documents and other product material, suggestions as to the use, installation and care of RPS but any such suggestions are made solely to assist the purchaser to obtain the best results from their RPS and do not constitute warranties in respect of the RPS or otherwise add to or vary these RTS in any way.
- Unless otherwise stated to the contrary by the purchaser on a written Order, RYCO will supply RPS on the basis that the RPS are to be used only in hydraulic applications with mineral oil within the limits shown in RYCO’s current Documents.
- RYCO will use its best endeavors to deliver at any agreed time set out in the Order, but all delivery dates shall be regarded as estimates only. Without limiting the foregoing, RYCO shall not be responsible for any late delivery of RPS caused by any person who the purchaser has arranged to collect the RPS from RYCO.
- There must be a representative of the purchaser present at the delivery location at the time delivery is made of the RPS and, if no such representative is present, a redelivery fee may be charged by RYCO.
- Where Orders are accepted by RYCO which require RYCO to undertake a special production run for the RPS the subject of the Order, unless otherwise agreed to in writing, RYCO reserves the right to:
a) deliver to the purchaser and charge the purchaser for additional RPS equal to the greater of 20 units or 15% of the quantity of RPS the subject of the Order, whichever is greater; or
b)not deliver to the purchaser and not charge or refund the purchaser for RPS equal to the greater of 20 units or 15% of the quantity of RPS the subject of the Order, whichever is greater.
RYCO will not accept any restriction of its right to manufacture or sell or offer to any other purchaser products which may have been manufactured specially for a specific purchaser or purchasers.
- Subject to clause 20 , the purchaser must pay to RYCO the price for the RPS specified in the Order or otherwise agreed in writing by RYCO (“Price”) in cash, cheque or by direct debit within 30 days of the earlier of the date that the RPS are dispatched for delivery to the purchaser and the date of the invoice for the price or such other date as agreed by RYCO and the purchaser.
- If the purchaser has previously failed to make any payment to RYCO by the due date or has suffered an insolvency event, RYCO may require payment of the Price in full prior to RYCO delivering the relevant RPS to the purchaser.
- If any amount becomes overdue, all amounts recorded on the purchaser’s account will be deemed to be immediately due and payable. The purchaser agrees to pay, and indemnifies RYCO for, all costs and expenses incurred by RYCO, its agents and its servants in the recovery of the overdue amounts, including but not limited to all legal costs, debt recovery costs and debt recovery agency costs.
- Unless otherwise expressly stated in writing, all amounts payable by the purchaser in connection with these RTS do not include an amount for GST. If GST is payable on any supply made by RYCO under these RTS, the purchaser must pay to RYCO, in addition to and at the same time as the payment for the supply, an amount equal to the amount of GST on the supply. Where the purchaser is required by these RTS to reimburse or indemnify RYCO for any loss or damage or other amount incurred, the amount to be reimbursed or paid will be reduced by the amount of any input tax credit that RYCO will be entitled to claim for the loss or damage or amount incurred and increased by the amount of any GST payable by RYCO in respect of the reimbursement or payment. In this clause, words and expressions which are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (as amended, varied or replaced from time to time) have the same meaning given to them by that Act.
- At any time after the due date for payment of any account owing from the purchaser to RYCO, or if the purchaser is subject to an insolvency event (ie in relation to a body corporate, a winding up, the appointment of a voluntary administrator, receiver, manager or similar insolvency administrator to a party or any substantial part of its assets, or in relation to an individual, becoming bankrupt or entering into a scheme or arrangement with creditors or, in relation to a body corporate or an individual, the occurrence of any event that has a substantially similar effect to any of the above events) RYCO may, in its sole discretion and at the purchaser’s expense, elect to do any one or more of the following:
a) recover possession of any RPS that RYCO has previously delivered to the purchaser and the purchaser grants a license to RYCO to enter any premises where such RPS are situated to search for, inspect and/or repossess such RPS and RYCO has the right to resell any RPS repossessed and is not liable to the purchaser or any person claiming through the purchaser arising from any repossession of RPS (or any other act or omission by RYCO or its agents engaged in by RYCO or them pursuant to the license granted under this clause);
b) delay, suspend or cancel deliveries or supply of any RPS in whole or in part;
c) terminate any contract formed under clause 3;
d) cancel any credit terms provided to the purchaser and require that the purchaser pay for any further RPS which the purchaser may order prior to delivery of those RPS;
e) RPS are designed for use in static equipment, mobile ground vehicles, mobile ground equipment and marine applications. RPS are not designed for use in flight applications. RYCO does not recommend use of its products on aircraft and has no liability to the purchaser if the purchaser supplies the goods to consumers for use on aircraft.
f) charge the purchaser interest (both before and after any judgement) on the unpaid amount at the rate fixed from time to time under section 2 of the Penalty Interest Rates Act 1983 (Vic) plus an additional 2% per month, which interest will accrue and be chargeable from the first day on which such amount becomes overdue until RYCO receives payment of all such amounts (including all interest) by way of cleared funds; and
g) exercise any rights which RYCO may have under law, including the PPSA.
- The RPS remain the property of RYCO and title in the RPS only passes from RYCO to the purchaser once RYCO has received all amounts due to it from the purchaser for those RPS. Risk in the RPS passes to the purchaser when the RPS leave RYCO’s premises for delivery to the purchaser and the purchaser must indemnify RYCO against any loss or damage to the RPS occurring after the RPS leave RYCO’s premises for delivery to the purchaser.
- Until such time as full title, property and ownership of the RPS passes to the purchaser in accordance with clause 24:
a) the purchaser must store the RPS separately from any other goods of its own or other suppliers and in a way that enables the RPS to be clearly identifiable as RYCO’s and referable to a particular invoice;
b) subject to clause 26 ,the purchaser holds the RPS as RYCO’s fiduciary and the purchaser must not sell, lease, dispose of or otherwise deal with the RPS in any way without RYCO’s prior written consent;
c) the purchaser must keep and maintain the RPS in good and substantial repair;
d) the purchaser must insure the RPS for their full replacement value;
e) RYCO may enter the premises of the purchaser or any third party where the RPS are stored during the hours of 9.00am to 5.00pm to inspect the RPS;
f) RYCO may at any time after payment is overdue require the purchaser to deliver up the RPS to RYCO and, if the purchaser fails to deliver up the RPS immediately, RYCO may enter the premises of the purchaser or any third party where the RPS are stored and repossess them;
g) the purchaser must not pledge or grant a security interest in or in any way charge by way of security for any indebtedness, any of the RPS which remain the property of RYCO. If the purchaser does pledge or in any way charge by way of
security, for any indebtedness, any of the RPS for which property and ownership has not passed to the purchaser, the purchaser must remove the pledge, charge or security interest immediately and all moneys owing by the purchaser to RYCO will (without prejudice to any other right or remedy of RYCO) immediately become due and payable to RYCO; and
h) the purchaser must not remove, deface, alter, obliterate or cover up any names, marks, designs, numbers, code or writing on the RPS.
- Notwithstanding that title to the RPS has not passed to the purchaser under clause 24 , the purchaser may, subject to obtaining RYCO’s prior written approval, resell the RPS or any part thereof in the name of the purchaser but only as agent for RYCO and
may deliver any such RPS to the buyer of those RPS but only in the ordinary course of its business and on terms which will not prejudice RYCO’s ability to obtain the sale proceeds thereof and:
a) any amount paid or due to be paid by the buyer of such RPS to the purchaser (“Sale Proceeds”) must be held by the purchaser on trust for RYCO and any amounts paid must be banked in a separate bank account relating only to the sale proceeds of any RPS and shall be forwarded as soon as possible to RYCO in satisfaction of any amount owed by the purchaser in respect of the RPS;
b) the purchaser must keep and maintain separate records in relation to the Sale Proceeds received and held by the purchaser and must provide such records to RYCO immediately upon request by RYCO; and
c) if and when the full amount due to RYCO in respect of the RPS has been received by RYCO, any further Sale Proceeds may be retained by the purchaser.
1. The purchaser must immediately cease the resale of any RPS under clause 26 if:
a) RYCO revokes any consent it has given to the purchaser to resell the RPS under clause 26 ; or
b) the purchaser fails to make any payment under the RTS by the relevant due date.
2. In the event that the purchaser processes, incorporates, transforms or installs the RPS (or any portion of them) into any other goods, buildings or land, then the purchaser must:
a) keep and maintain records in relation to the RPS which have been processed, incorporated, transformed or installed and the goods, buildings or land in which the RPS have been processed, incorporated, transformed or installed; and
b) hold a proportion of any payment (“Relevant Proportion”) received by the purchaser for such goods, buildings or land on trust for RYCO and the purchaser acknowledges that the Relevant Proportion must be not less than the dollar value of the portion of the RPS processed, incorporated, transformed or installed.
3. If an insolvency event occurs in respect of the purchaser then, without the need for notice or demand by RYCO, the purchaser acknowledges that any sale or purported sale of the RPS will not be in the ordinary course of the purchaser’s business and the proceeds of any RPS sold in such circumstances will, to the extent of any money owing by the purchaser to RYCO, be held on trust for the purchaser by the administrator, controller or similar officer as the case may be, or if there is no such officer, by the purchaser.
4. The parties acknowledge that under this arrangement, when the purchaser receives the RPS the purchaser is deemed to grant RYCO a security interest (as that term is defined in section 12 of the Personal Property Securities Act (2009) (“PPSA”) in the RPS securing the purchaser’s obligation to return the goods to RYCO or pay the Price.
5. The purchaser acknowledges and agrees that these RTS constitute a Security Agreement which creates a Security Interest (a Purchase Money Security Interest) under the PPSA in favour of RYCO. RYCO holds a Security Interest in all RPS previously supplied by RYCO to the purchaser, and will hold a Security Interest in all after acquired RPS supplied on the terms set out in clauses 23 and 24 , notwithstanding anything express or implied to the contrary contained in the purchaser’s Order.The purchaser agrees:
a) that RYCO may effect a registration of its Security Interest on the Personal
b) Properties Securities Register (PPSR) at its sole discretion;
c) to provide RYCO with all information (which information the purchaser warrants to be complete, accurate and up to date in all respects) and execute any document or do anything that RYCO may reasonably require to enable perfection of its Security Interest or registration of a Financing Statement or Financing Change Statement on the PPSR;
d) not to register a Financing Change Statement or an amendment demand without the prior written consent of RYCO;
e) to provide to RYCO not less than fourteen days prior written notice of any proposed change in the purchaser’s name or any other change in its details (including but not limited to change in the address, facsimile, email, trading name or business practice);
f) if requested by RYCO, and to the extent permissible under the PPSA, pay all reasonable costs incurred by RYCO to register a Financing Statement and to maintain up-to-date registration of its Security Interest on the PPSR;
g) reimburse RYCO the full cost incurred by RYCO (including legal costs and disbursements on an indemnity basis) in obtaining an order pursuant to section 182 of the PPSA;
h) as between the purchaser and RYCO, where RYCO has rights under this Agreement in addition to those in Chapter 4 of the PPSA, those rights will continue to apply and will not be limited by s125 of the PPSA;(i) to the extent permitted by law, to waive any rights that the purchaser may have to:
(ii) receive notice of removal of an accession under section 95 of the PPSA, and not to have the RPS damaged when RYCO removes the accession;
(iii) reinstatement of the security agreement pursuant to s143 of the PPSA;
(iv) receive any notice required under the PPSA, including but not limited to a notice of retention or a notice of disposal or a statement of account on enforcement of the Security Interest in accordance with s115 of the PPSA;
(v) receive a Verification Statement in respect of any Financing Statement relating to the Security Interest pursuant to section 157 of the PPSA,
For the purposes of this clause 31 , capitalised terms have the meaning of those terms in the PPSA.
6. RYCO will not be liable for breach of contract arising from or caused by, directly or indirectly, fire, flood, earthquake, storm or tempest; the action of any government or any public authority or corporation; the lack of labour, supplies or equipment, from whatever cause; or any other cause beyond RYCO’s control.
7. These RTS and any contract formed under clause 3 shall be governed by and construed by the laws of the State of Victoria, Australia and the parties agree to submit to the non-exclusive jurisdiction of the courts of Victoria.
8. If any of these RTS or any part thereof is held by a court to be void or unenforceable such provision shall be read down to such extent as may be necessary to ensure that it does not so infringe and as may be reasonable in all circumstance so as to give it valid operation of a partial character and in the event that the infringing condition cannot be so read down it will be severed from the other provisions.
9. RYCO may, to the extent permitted by law, amend these RTS from time to time, but those amendments will not take effect until RYCO has notified the purchaser in writing of those amendments (“Amendment Date”). Any variation to these RTS will only apply to any offer made after the Amendment Date and the parties acknowledge that nothing in these RTS requires the purchaser to make any further submit any Order and make any offer after the Amendment Date
10. RYCO may cancel or terminate these RTS at any time by giving written notice to the purchaser of the cancellation, however these RTS will continue to apply to, and RYCO will supply RPS on the terms of these RTS for, any Order that has been accepted by RYCO (under clause 3 ) on or before the date of that RYCO provides the purchaser of notice of cancellation or termination under this clause.
11. The purchaser acknowledges that RPS are designed for use in static equipment, mobile ground vehicles, mobile ground equipment and marine applications and RPS are not designed for use in flight applications. RYCO does not recommend use of its products on aircraft and, subject to and without limiting any rights which the purchaser may have under the Australian Consumer Law, has no liability to the purchaser if the purchaser supplies the goods to consumers for use on aircraft.
12. The purchaser may not assign, transfer or otherwise dispose of any of the rights or obligations of this or any other contract with RYCO that is subject to these RTS without the prior written consent of RYCO.