RYCO Terms of Sale (“RTS”)
These RTS are the terms and conditions of each of RYCO HYDRAULICS PTY LTD ABN No 96 085 527 724; RYCO 24.7 Pty Ltd ABN 97 054 946 173 and each is referred to, severally, as “RYCO”.
Unless otherwise expressly agreed in writing, the products and services supplied by RYCO (“RPS”) are supplied upon the following 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 terms 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 relevant catalogues, product technical manuals, manuals and published technical data (“Documents”); and
b) holds themselves as a responsible, competent and appropriately skilled user or reseller of RPS and that they comprehend and understand the dangers of
incorrect use, installation or assembly of such products. Documents are available on the RYCO website www.ryco.com.au.
Each request for RPS (whether in writing 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) (“Order”) placed by the purchaser amounts to an offer by it to acquire from RYCO the RPS described in the Order upon these RTS. RYCO may, in its discretion, accept an offer by doing one of the following within 30 days after the date that RYCO receives the Order:
a) deliver the RPS (or perform the services) to the address for delivery set out in the Order; or
b) provide express written acceptance of the Order to the purchaser giving an estimated date for delivery.
Failure of RYCO to accept the order in accordance with this clause 3 will be a rejection of the Order.
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.
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 17, that has been accepted by RYCO may not be reduced or cancelled by the purchaser after acceptance without the agreement of RYCO in writing.
The purchaser agrees that all RPS it orders are for the purposes of business and the purpose of re-supply or transforming them in the process of trade or commerce, and not for personal, domestic or household use or consumption, and that the Australian Consumer Law does not apply to the supply of RPS to the purchaser to the extent permitted by that Act. The purchaser acknowledges and agrees that RYCO relies upon this representation in agreeing to deliver or provide the RPS.
All products supplied by RYCO must be examined by the purchaser at the time of delivery and any deficiency in quantity or quality of or damage to product delivered (“Defect”) must be notified to RYCO within 5 business days of the date of delivery to the purchaser. If the purchaser does not provide such notification to RYCO then this shall be deemed to be an acknowledgment by the purchaser that the:
a) quantities as set out by the invoice are correct; and
b) products are of an acceptable quality; and
c) the products are not damaged and will not be returned.
Subject to clauses 11 and 13 below, RYCO warrants to the purchaser that the RPS will be of an acceptable quality on delivery and for twelve months from issue of invoice by RYCO (“Warranty”).The purchaser agrees that it will not provide any express warranty in respect of the RPS to any customer other than the Warranty as provided here, and releases and indemnifies RYCO from any liability for any representation made by the purchaser to a customer that exceeds the Warranty. RYCO will not provide any warranty whatsoever on items manufactured, built or acquired wholly or partially to the purchaser’s designs or specifications.
If the purchaser provides notification of a Defect to RYCO pursuant to clause 8 and lodges a Warranty claim in relation to RPS, RYCO’s liability will be limited as set out in clause 13.
To the extent permitted by law, RYCO will not be liable for a breach of the Warranty set out in clause 9 for any of the following:
a) the purchaser not providing notification to RYCO pursuant to clause 8;
b) the purchaser or the user of the RPS has not used the RPS in accordance with the instructions or specifications set out in the Documents;
c) use of the RPS that is contrary to the instructions contained in RYCO’s Documents, as this may result in an unsatisfactory or even dangerous product;
d) defects caused by normal or accelerated deterioration; physical, chemical, electrochemical or environmental conditions; insufficient maintenance or incorrect repair; failure to follow correct storage, user and operating instructions; use of unsuitable materials;
e) products that have been incorrectly assembled in accordance with the assembly operations specified in RYCO’s Documents;
f ) the modification of RPS, other than in accordance with RYCO’s written approval;
g) the performance of 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. These welded products should be tested and proved fit for the use intended; and
h) the claimant does not extend to RYCO a reasonable opportunity to fully inspect the product, the subject of the claim and the circumstances giving rise to the claim.
Subject to clause 9 and except as conferred by law, no express warranty or guarantee is given with respect to any of the characteristics or quality of RPS supplied.
Where any law or statute implies in these RTS, any term, condition or warranty and that Act, law or statute avoids or prohibits a contract excluding or
modifying the application of or exercise of or liability under such term, condition or warranty, such term, condition or warranty will be deemed to be included
in these RTS. The liability of RYCO to the purchaser for any breach of such term, condition or warranty, or any breach of the Warranty will be limited, at the
option of RYCO, to:
a) if the breach relates to goods:
i) the replacement of the goods or the supply of the equivalent goods;
ii) repair of the goods
iii) the payment of the cost of replacing the goods or of acquiring equivalent goods or having the goods repaired; or
b) if the breach relates to services:
i) the resupply of the services (or part of them); or
ii) the payment of the cost of having the services supplied again.
RYCO sets out, in its Documents and other product material, suggestions as to the use, installation and care of its products on the understanding that those suggestions are made solely to assist the purchaser to obtain the best results from their purchase and those suggestions do not constitute warranties or otherwise add to or vary these terms in any way.
Unless otherwise stated to the contrary by the purchaser on a written Order, RYCO will supply products on the understanding that they will be used in hydraulic applications with mineral oil within the limits shown in RYCO’s current Documents.
RYCO will use its best endeavours to deliver at the time stated in the Order, but all delivery dates shall be regarded as estimates only. The purchaser must accept the actual delivery date and RYCO shall not be liable for any losses, costs, damages or expenses suffered by the purchaser or any other party as a result of any delay in delivery.
Where Orders are accepted by RYCO for special production runs, unless otherwise agreed to in writing, RYCO reserves the right to make delivery and charge for plus or minus 20 units or 15% of the order quantity, which ever 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.
Payment is to be made in cash, cheque or by direct debit within 30 days of invoice date. If:
a) the purchaser fails to make any payments that are due to RYCO on or before the due date stipulated in the invoice, under this or any other contract, RYCO may delay, suspend or cancel deliveries in whole or in part at its sole discretion;
b) the payment is not made within these RTS, interest will be calculated and charged at the interest rate fixed from time to time in section 2 of the Penalty Interest Rates Act 1983 (Vic) plus an additional 2% per month, and will be charged monthly and accrue from the date of invoice until all overdue amounts are paid in full; and
c) 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 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.
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 to the RPS occurring after delivery. 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. While RYCO retains title to the RPS, the purchaser holds the RPS as RYCO’s fiduciary and the purchaser is authorised to sell the RPS as RYCO’s agent and fiduciary and the proceeds of any sale of RPS or insurance claim regarding RPS must be held on trust for RYCO until title to the RPS passes to the purchaser. The parties acknowledge that under this arrangement, when the purchase 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 purchase price.
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) and has not paid any outstanding amount owing to RYCO, and so long as such amounts have not been received by RYCO in full, RYCO at the purchaser’s expense, may recover possession of these, or any other RPS that RYCO has previously delivered to the purchaser which are of an equivalent value. If this occurs, the purchaser grants a licence to RYCO to enter any premises where such RPS are situated to search for, inspect and/or repossess such RPS. 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 licence granted under this clause).
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 19 and 20, notwithstanding anything express or implied to the contrary contained in the purchaser’s purchase order.
The purchaser agrees:
a) that RYCO may effect a registration of its Security Interest on the Personal Properties Securities Register (PPSR) at its sole discretion;
b) 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;
c) not to register a Financing Change Statement or an amendment demand without the prior written consent of RYCO;
d) 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);
e) 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;
f ) 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;
g) 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;
h) to the extent permitted by law, to waive any rights that the purchaser may have to:
(i) 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;
(ii) reinstatement of the security agreement pursuant to s143 of the PPSA;
(iii) 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;
(iv) 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 21, capitalised terms have the meaning of those terms in the PPSA.
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.
This contract shall be governed by and construed by the laws of the State of Victoria, Australia.
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.
RYCO may 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. The applicable version will be those RTS attached to or forming part of the relevant Order and will take precedence over any earlier version contained in the Documents.
RYCO may cancel these RTS at any time by giving written notice to the purchaser of the cancellation. RYCO will supply any Order that has been accepted by it (under clause 3) on or before the date of that cancellation notice.
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.
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.