Redland’s Terms of Trade – Merchant or Agent

1. When Terms of Trade apply

These Terms of Trade set out the general terms and conditions on which the trader, Redland Premium Fruit Pty Ltd as trustee for RPF Trust ABN 43 249 220 845 (Redland) is prepared to trade (as merchant or agent) in horticultural produce (produce) pursuant to the Horticulture Code of Conduct contained in Schedule 1, Competition and Consumer (Industry Codes – Horticulture Regulations 2017 (Cth) (Code).

2. Good faith

Redland and the Grower will deal with each other in good faith.

3. Horticulture Produce Agreement prevails

1. 1. The Code requires that transactions between Redland and the Grower must be conducted pursuant to a Horticulture Produce Agreement (HPA). In the event of any inconsistency between these terms and conditions and the HPA, the HPA prevails.
   2. The Grower acknowledges that the Code requires that it must return to Redland a signed HPA before Redland will accept delivery of produce.

4. Requirements for delivery

4.1. Delivery and off-loading

1. 1. The Grower is responsible for delivery of produce to the location(s) specified in the HPA; and
   2. Redland is responsible for offloading of the produce.

4.2. Produce bins

1. 1. Produce must be delivered in produce bins pre-approved by Redland; and
   2. Produce bins must identify the Grower and varietal of the produce and must specify any other traceability requirements reasonably required by Redland from time to time.

4.3. When delivery occurs

Delivery of produce from the Grower to Redland will be deemed to have occurred:

1. 1. if Redland is trading as a merchant, when the produce has been graded by Redland and the grade determined in accordance with the relevant quality specification; or
   2. if Redland is trading as an agent, when the produce is accepted as delivered at the place of delivery by Redland.

5. Quality of produce

Produce delivered by the Grower to Redland must meet the quality specifications advised by Redland to the Grower from time to time, or specified in the HPA, or if none are advised, the FreshSpecs Produce Specifications available at http://freshmarkets.com.au/fresh-specs/.

6. Rejection of produce

6.1. Redland is entitled to reject produce:

1. 1. it reasonably believes the Grower has no title in;
   2. not delivered or supplied in accordance with the requirements of the HPA;
   3. where it is not satisfied in its complete discretion as to the accuracy of certifications, spray diaries or of other steps required to be taken by the Grower in relation to the produce;
   4. it reasonably believes is unfit for human consumption; or
   5. it reasonably believes may:
      1. cause damage to Redland’s plant and equipment;
      2. adversely impact any certification Redland holds or is required to hold for the packing and supply of produce to any market;
      3. adversely impact any other produce in its possession;
      4. be non-compliant with any quality assurance programme Redland has in place; or
      5. be affected by disease or pests.

6.2. Redland may reject all of the produce in a delivery based on a sample of the produce (either inspected or graded).

6.3. Redland may reject produce at any time while the produce is in Redland’s possession or control. Nothing prevents Redland from rejecting produce after a delivery of produce has been accepted by Redland, however, Redland will endeavour to identify produce qualifying for rejection at the earliest opportunity.

6.4. The Grower must pay any reasonable service fees incurred by Redland in relation to rejected produce.

6.5. Within 1 Business Day of Redland rejecting produce, Redland must notify the Grower of the details of produce rejected and reasons for rejection (Rejection Notice).

6.6. The Grower must collect rejected produce within 2 business days after its receipt of a Rejection Notice, failing which the rejected produce will be deemed abandoned by the Grower and destroyed at the Grower’s cost.

6.7. Where title and/or risk in rejected produce has passed to Redland, title and/or risk in any rejected produce will pass back to the Grower at the same time the Grower receives the relevant Rejection Notice.

6.8. Redland will exercise reasonable care and skill in handling and storing rejected produce until the rejected produce is collected by the Grower or deemed abandoned.

7. Payment by Redland when acting as merchant

7.1. If Redland is trading as a merchant, Redland will issue the Grower an invoice for produce purchased under the HPA, with reference to the relevant price list and grade report. Redland will pay the Grower the purchase price for that produce within 28 days of the date of that invoice. Redland may deduct from the purchase price any applicable royalties, agreed service fees, and any other amounts or costs agreed to be deducted or set off pursuant to the HPA.

7.2. If Redland does not pay the purchase price within the period referred to in clause 7.1, Redland must pay the Grower interest on the outstanding amount at the Reserve Bank of Australia’s Cash Rate Target plus 5% per annum.

8. Payment by Redland when acting as agent

8.1. Where Redland is trading as an agent, Redland will pay the Grower the purchase price of the sale of produce less applicable Redland commission (expressed as a percentage of the gross sale proceeds), applicable royalties, agreed fixed service fees, and any other amounts or costs agreed to be deducted or set-off pursuant to the HPA, within 28 days of Redland’s receipt of the whole of the proceeds of the sale of the Grower’s produce from the third party buyer.

8.2. Only Redland’s commission is contingent on the sale of the Grower’s produce. All other additional fees, costs and levies arising under the HPA may be charged or deducted from proceeds of sale by Redland where they arise.

8.3. The Grower acknowledges and agrees that no minimum or positive return is guaranteed under any agreement and that, where applicable, if Redland’s commission, agreed service fees, and any other amounts or costs agreed to be deducted or set-off pursuant to the HPA exceed the proceeds of sale of the Grower’s produce, the resulting negative balance is a debt due and payable by the Grower to Redland and which may, in Redland’s sole discretion, be deducted from other amounts payable by Redland to the Grower under the HPA.

9. Bad debts

9.1. Where Redland is trading as an agent, Redland will take commercially reasonable steps, as it determines in its sole discretion, to pursue bad debts of $1,000 or more arising from the sale of the Grower’s produce to a third party. Redland is not required to take legal action against a buyer in respect of a bad debt.

9.2. Redland is not liable to pay the Grower the amount of any bad debt.

9.3. Redland is entitled to recover its reasonable legal costs incurred in pursuing a bad debt from the Grower, including by way of set-off from amounts otherwise owing to the Grower.

9.4. The Grower must not pursue a bad debt without Redland’s prior written consent, and must provide all reasonable assistance requested by Redland to pursue a bad debt.

10. Insurance

10.1. Redland does not hold insurance over produce supplied by the Grower.

10.2. The Grower must take out and maintain public liability insurance of not less than $20,000,000 per occurrence in respect of all insurable risks connected with the supply of produce under the HPA, and must provide Redland with evidence of insurance, including certificates of currency, upon request.

11. Cooling-off period

11.1. Either party may terminate the HPA in writing within the cooling-off period, being:

1. 1. 14 days after the execution date if the HPA is for a period of 90 days or longer, or has no specified term, or
   2. 7 days after the execution date if the HPA is for a period less than 90 days.

11.2. Where any trade of produce or provision of services have occurred in the period after entry into the HPA and prior to termination under cooling off, the HPA will apply to the extent of that trade or services undertaken.

12. Title and risk

12.1. Where Redland:

1. 1. is trading as a merchant, title and risk in the produce supplied by the Grower will pass to Redland at the time the produce is deemed delivered in accordance with clause 4.3(a) of this document;
   2. is trading as an agent, title and risk in the produce supplied by the Grower does not pass to Redland at any time while in the possession or control of Redland.

13. Covenant and warranty

The Grower covenants and warrants that:

1. 1. The Grower has all right, title and interest in and to the produce;
   2. All right, title and interest in the Grower’s produce at the point of sale is delivered free and clear of all encumbrances, claims and other adverse interests; and
   3. The Grower is the grower of the produce.

14. Indemnity

14.1. The Grower must indemnify Redland against any liability, loss or expense arising from or in connection with any negligent act, omission or wilful misconduct of the Grower, including claims for death, personal injury or damage to property.

14.2. Redland must indemnify the Grower against any liability, loss or expense arising from or in connection with any negligent act, omission or wilful misconduct of Redland, including claims for death, personal injury or damage to property.

14.3. Each party’s liability under this clause is reduced to the extent the loss or claim was caused by the other party’s negligence or breach of the HPA.

15. Limit of Liability

15.1. Redland enters into these terms only in its capacity as trustee of the RPF Trust. Redland’s liability arising under or in connection with these terms is limited to, and can only be enforced against Redland to, the extent that Redland is entitled to be indemnified for that liability out of the assets of the RPF Trust.

15.2. Neither party is liable to the other for any Consequential Loss arising out of a breach of these terms, except in relation to: liability for death, personal injury or damage to property; a breach of a Modern Slavery Law; fraud, illegal acts or wilful misconduct which has substantial harmful consequences for the other party; or conduct so grossly careless that it amounts to a reckless disregard for the foreseeable and avoidable consequences which may result from it.

16. Independent legal advice

Redland recommends that the Grower seeks independent legal advice in relation to these terms and any HPA prior to it being entered into between Redland and Grower.