CONDITIONS OF SALE (“Terms”)

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1. DEFINITION
In these Terms:
Goods means all products and services agreed to be supplied by Delta or a supplier which has entered into an arrangement with Delta to supply products or services to the Customer under any contract, arrangement or understanding between Delta and the Customer including but not limited to goods described in any invoice Delta issues to the Customer.
Contract means any contract for the sale or supply of Goods entered into between Delta and the Customer and includes these Terms.
Customer means the person making the application or entering into a Contract with Delta;
Delta means Delta Agribusiness Pty Ltd ABN 93 118 781 445 and its agents, employees, controlled entities, and any related bodies corporate as defined in the Corporations Act 2001 (if such controlled entity or related body corporate is named as the party making or accepting the Customer’s order of Goods).

Delivery Period means, where Delta provides a quotation for the supply of the Goods, the estimated delivery date or period for delivery of the Products (or delivery dates or periods, where delivery is by instalments) as specified in the quotation; Force Majeure means a circumstance beyond the reasonable direct or indirect control and without the fault or negligence of the party claiming force majeure, including accident, pandemic, epidemic, fire, flood, strike, labour disturbance, riot, revolt, war, mandatory orders or acts of a governmental authority, and acts of God; Insolvency Event means being in liquidation or provisional liquidation or under administration, having a controller (as defined in the Corporations Act 2001 (Cth)) or analogous person appointed to it or any of its property, being taken under section 459F(1) of the Corporations Act to have failed to comply with a statutory demand, being unable to pay its debts or otherwise insolvent, dying, ceasing to be of full legal capacity or otherwise becoming incapable of managing its own affairs for any reason, taking any step that could result in the person becoming an insolvent under administration (as defined in section 9 of the Corporations Act 2001 (Cth)), entering into a compromise or arrangement with, or assignment for the benefit of, any of its members or creditors, or any analogous event.
 

2. APPLICATION OF THESE TERMS AND STATUTORY PROVISIONS
These Terms: (a) are subject to the provisions of the Competition and Consumer Act 2010 (Cth) (including the Australian Consumer Law), any statutory amendment or reenactment thereof for the time being in force and any other relevant and applicable State and/or Commonwealth legislation (the Statutory Provisions); (b) unless Delta otherwise informs you in advance or agrees in writing, these Terms are the only terms and conditions to which Delta will be bound and the Customer agrees that these Terms
will in all circumstances prevail over the Customer’s terms and conditions of purchase (if any); and (c) supersede and exclude all prior and other discussions, representations (contractual or otherwise) and arrangements relating to the supply of the Goods including, but not limited to, those relating to the performance of the Goods or the results that
ought to be expected from using the Goods, but not including any misrepresentations or misleading statement by Delta. Delta reserves its right to reject orders for Goods placed by the Customer prior to any such order being accepted by Delta, including where the Customer is in default under, or in breach of, these Terms.
 

3. LIMITATION OF LIABILITY
To the extent permitted by law, and without limiting any statutory rights of the Customer that cannot be limited or excluded (including any such non-excludable rights under the Australian Consumer Law), Delta limits its liability to the Customer for any loss or damage suffered by the Customer in connection with the supply of Goods to the Customer under these Terms to: (a) for the supply 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) for the supply of services: (i) the supplying of the services again; or (ii) the payment of the cost of having the services supplied again. Subject to the terms of this clause 3, neither party is liable to the other party for any indirect, special or consequential loss or damage howsoever caused.
 

4. TITLE
(a) Title to and property in the Goods shall not pass to the Customer and is reserved to Delta until the total purchase price for the Goods and any other amounts outstanding to Delta from the Customer have been paid in full. (b) The Customer acknowledges that until title in and to the Goods passes to the Customer in accordance with this clause, the Customer holds the Goods as bailee of Delta and that a fiduciary relationship exists between the Customer and Delta. (c) Until title in and to the Goods passes to the Customer in accordance with this clause the Customer shall store the Goods separately and in such a manner that they are clearly identified as the property of Delta and shall insure the Goods with a reputable insurer until title passes to the Customer. Delta shall be entitled until title in and to the Goods passes to the Customer to demand evidence of such insurance. If the Customer fails to pay for the Goods when due, Delta may demand return of the Goods and shall be entitled without notice to the Customer and without liability to the Customer to enter any premises occupied by the Customer in order to search for and remove the Goods. If the Customer sells any of the Goods while money is owed to Delta, the Customer must keep the proceeds of the sale in a separate account and not mix them with any other funds. (d) If the Customer uses the Goods in some farming or manufacturing or construction process of its own or of some third party, then the Customer shall hold such part of the proceeds of such farming or manufacturing or construction process as relates to such Goods on trust for Delta to the extent necessary to cover the amount owed to Delta for such Goods. (e) If the Goods
are resold, or goods using or reselling the Goods are grown or manufactured and resold by the Customer, the Customer holds all of the book debts owed in respect of such sales and proceeds of such sales on trust for Delta to the extent necessary to cover the amount owed to Delta for such Goods.
 

5. PERSONAL PROPERTY SECURITIES ACT 2OO9
(a) The Customer acknowledges that the Contract constitutes a security agreement for the purposes of section 20 of the Personal Property Securities Act 2009 (PPSA) and that a security interest exists in all Goods (and their proceeds) supplied by Delta to the Customer under the Contract. (b) The Customer will execute documents and do such further acts as may reasonably be required by Delta to register the security interest granted to Delta under the Contract under the PPSA.
(c) Until ownership of the Goods passes, the Customer waives the Customer's rights under the following provisions of Part 4 of the PPSA: (i) to receive a notice of intention of removal of an accession (section 95); (ii) to receive a notice that Delta decides to enforce its security interest in accordance with land law (section 118); (iii) to receive a notice of enforcement action against liquid assets (section 121(4)); (iv) to receive a notice of disposal of goods by Delta purchasing the Goods (section 129); (v) to receive a notice to dispose of Goods (section 130); (vi) to receive a statement of account following disposal of goods (section 132(2)); (vii) to receive a statement of account if no disposal of Goods for each 6 month period (section 132(4)): (viii) to receive notice of any proposal of Delta to retain Goods (section 135); (ix) to object to any proposal of Delta to either retain or dispose of Goods (section 137); (x) to redeem the Goods (section 142); (xi) to reinstate the security agreement (section 143); (xii) to receive a notice of any verification statement (section 157(1) and section 157(3); (d) The Customer further agrees that where Delta has rights in addition to those under Part 4 of the PPSA, those rights will continue to apply. (e) Until ownership of the Goods passes, the Customer must not give to Delta a written demand or allow any other person to give Delta a written demand requiring Delta to register a financing change statement under the PPSA or enter into or allow any other person to enter into the register of personal property securities a financing change statement under the PPSA. (f) The Customer acknowledges that it has received value as at the date of first delivery of the Goods and has not agreed to postpone the time for attachment of the security interest (as defined in the PPSA) granted to us under these Conditions of Sale. (g) For the purposes of Delta being able to exercise any of its rights under sections 123 or 128 of the PPSA, the Customer irrevocably grants to Delta (or an authorised agent or contractor appointed by Delta and notified by Delta to the Customer) the right to enter upon the Customer’s property or premises at any time between the hours of 8am to 6pm by giving no less than 48 hours advance notice (or without notice where Delta, acting reasonably, considers that the provision of notice may lead to further losses being suffered by Delta). The Customer indemnifies Delta against any claims made by any third party as a result of such exercise of entry rights, except to the extent the relevant loss or damage suffered by the Customer, or the third party was caused by the gross negligence, fraud or wilful misconduct of Delta.
 

6. PAYMENT AND SERVICE CHARGES
Delta may (but is not obliged to), allow the Customer to purchase Goods under this Contract on credit. If credit terms are offered by Delta, the Customer must pay the price charged by Delta for the Goods within 30 days following the end of the month during which the Goods were supplied or provided, unless a shorter period for payment is specified on the front of the invoice in which case payment must be made within the specified period. The Customer is not entitled to withhold any payments or to refuse payment on the grounds of counter claims which are disputed by Delta. Should the Customer not pay within 30 days, Delta shall be entitled to charge a fee for overdue payment at the rate of 1.5% of the outstanding balance per month . Without limiting the rights of Delta under clause 7(a), Delta may by notice to the Customer and without having to provide any reasons, reduce or remove the ability of the Customer to purchase Goods on credit, including requiring the Customer to pay upfront (i.e. not on credit) for any Goods that it may wish to order from Delta under.
 

7. TERMINATION
(a) Either party may terminate this agreement by notice to the other party if: (i) the other party commits a breach of this agreement that is capable of remedy (including an obligation to pay money) and fails to remedy the breach within 14 days of a notice to do so being given by the other party; (ii) the other party commits a material breach of this agreement that is not capable of remedy; or (iii) to the extent permitted by law, the other party suffers an Insolvency Event. Termination or expiry of this agreement does not affect any accrued rights or remedies of either party, including any obligation of the Customer to pay monies owed to Delta and any interest that applies pursuant to clause 6, above.
 

8. PALLETS AND BULK CONTAINERS
Unless otherwise agreed to in writing all pallets on which Goods are delivered remain the property of Delta and must be returned at the Customer's expense in good order and condition (fair wear and tear excepted) to the store of Delta from which they were delivered. Delta may levy a deposit charge for pallets and bulk containers which will be credited back upon their return. It is the Customer’s responsibility to return empty returnable bulk containers (including bulk bags and bulk bins) in the same condition as they were supplied (fair wear and tear excepted) to the location from which they were supplied or other location nominated by Delta. At all times bulk containers supplied by Delta will remain the property of Delta and must not be used for any commodity other than that contained in the bulk containers at the time of delivery.
 

9. DELIVERY
In relation to the supply of bulk fertiliser or bulk materials: (a) The Customer acknowledges that: (i) Delta uses third party delivery contractors to deliver Goods to the Customer; (ii) logistical issues outside Delta’s control may impact when and how the Goods are delivered to the Customer, the Goods may need to be delivered in parts and that each part delivery may occur on different days; and (iii) the Delivery Period is an estimate only. (b) While Delta will use reasonable endeavours to deliver the total quantity of the Goods by the end of the Delivery Period, Delta shall not be liable for any failure or delay in delivery due to logistical issues which are outside Delta’s control. (c) If logistical issues arise which impact the quantity that can be delivered, Delta will notify the Customer as soon as reasonably practicable. (d) Where Delta cannot deliver the total quantity of the Goods by the end of the Delivery Period, Delta may, with the Customer’s prior consent: (i) deliver part of the Goods within the Delivery Period and deliver the remaining Goods in another instalment within a reasonable period after the end of the Delivery Period; or (ii) vary the total quantity of Goods delivered and the Price. (e) Where the quantity of Goods is varied in accordance with clause 3.4, the Price will be adjusted to the revised price agreed between the parties.
 

10. FORCE MAJEURE
(a) Delay in or failure of performance by a party (other than the payment of money) does not constitute a breach of this Contract if and to the extent that the delay or failure is caused by Force Majeure, providing that the party claiming Force Majeure: (i) gives notice to the other party within 14 days of the occurrence of the Force Majeure providing details of the Force Majeure and its anticipated likely duration and effect; and (ii) uses its best endeavours to resume fulfilling its obligations as promptly as possible and gives notice to the other party with written notice within 14 days of the cessation of the Force Majeure. (b) If a delay caused by Force Majeure continues for more than 21 days, either party may terminate this Contract giving 14 days notice to the other party.
 

11. GENERAL LIEN
In addition to any right of lien to which Delta may be entitled under the common law, Delta shall be entitled to exercise a general lien over all items in its possession belonging to the Customer until the Customer has paid in full for all Goods supplied by Delta to the Customer. Delta may to the extent reasonably necessary to protect its legitimate interests sell any item that is subject to the said lien, provided that Delta shall pay to the Customer any surplus proceeds that are realised by it from a sale of any such items after discharging in full all monies outstanding to Delta in respect of Goods that have been delivered by it to the Customer and all reasonable costs of sale incurred by Delta. The Customer acknowledges that Delta has a security interest (for the purposes of the PPSA) in these items, and the proceeds of these items, until the Customer has paid in full for all Goods supplied by Delta in accordance with this clause. The Customer will do anything required by Delta to enable Delta to register this security interest, with the priority Delta requires, and maintaining that registration. Despite this requirement for registration of this security interest, and regardless of whether or not it is actually registered, Delta may perfect this security interest by possession of the relevant items.
 

12. SEVERANCE
Each clause and subclause of these Terms is separate and independent. If any clause or subclause is found to be invalid or ineffective, the other clauses or subclauses will not be adversely affected.
 

13. GOVERNING LAW
The contract shall be governed and construed in accordance with the law in force in the State of New South Wales. The Customer and Delta hereto irrevocably submit to and accept, generally and unconditionally, the non-exclusive jurisdiction of any of the courts of that State as Delta may elect with respect to any legal action or proceedings which may be brought at any time relating in any way to this Contract.
 

14. TRANSACTION TAX
Where a transaction tax, including a goods and services tax (GST) and any transaction taxes that come into existence after the date of these Terms, applies to any supply made under these Terms, Delta may recover from the Customer an additional amount on account of that transaction tax.
 

15. SET-OFF
Delta may, acting reasonably and by notice to the Customer, set-off any amount due and owing by Delta to the Customer on any account whatsoever, including any monies held by Delta for or on account of the Customer, against any amount due and owing by the Customer to Delta in respect of the Goods supplied by Delta under this Contract.
 

16. NOTIFICATION OF CHANGE OF DETAILS
Where any change takes places in the Customer’s trading structure or management, including any change of director, shareholder or any change in partnership or trusteeship
notwithstanding any advice by the Customer, to Delta, the Customer shall not continue to operate its credit account without Delta’s prior written consent (such consent not to be unreasonably withheld), and the Customer shall remain liable for all amounts owed to Delta until the whole amount (including service and other charges) has been paid in full to Delta.
 

17. VARIATION OF TERMS
Delta may vary these Terms by reasonable advance notice to the Customer, provided that any such variation will not apply to any purchase of Goods already made by the Customer under these Term. If the Customer does not agree to the variation, the Customer must not order any further Goods from Delta and may terminate these Term by notice to Delta, in which case the Customer will no longer be permitted to place any orders for Goods with Delta unless the Customer subsequently agrees to Delta’s then current trading account terms. Termination of these Terms under this clause 17 will not affect any accrued rights or remedies of either party.
 

18. TRUSTS
These Terms bind the Customer both personally and as trustee of any trust of which the Customer is trustee.